NSTITUTIONAL 
STORY/ND, 


OF  THE 

UNITED  STATES- 


SIMON  STERNE. 


/ 


UNIVERSITY  OF  CALIFORNIA 
AT   LOS  ANGELES 


THE  GIFT  OF 

MAY  TREAT  MORRISON 

IN  MEMORY  OF 

ALEXANDER  F  MORRISON 


CONSTITUTIONAL  HISTORY 


AND 


POLITICAL  DEVELOPMENT 


&*•  tnte 


UNITED   STATES. 


SIMON   §TERNE, 

OP  THE  NEW  YORK  BAR. 


CASSELL,  FETTER,  GALPIN  &  CO., 

NEW  YORK,  LONDON  AND  PARIS. 


PREFACE. 


THE  request  addressed  to  me  by  the  publishers 
to  write  a  popular  book  on  the  Constitution  of 
the  United  States,  naturally  led  me  to  inquire 
whether,  in  the  multiplicity  of  works  on  this,  as 
on  every  other  conceivable  subject  touching  large 
popular  interests,  there  is  any  room  to  say  some- 
thing novel,  or  put  into  a  novel  form  the  old 
matter  which  has  been  said  and  written  over  and 
over  again  by  abler  tongues  and  pens  than  mine. 
It  occurred  to  me  that  a  sketch  of  the  Constitution 
of  the  United  States  as  it  stands  in  text,  and  as 
it  is  interpreted  by  the  Supreme  Court,  accom- 
panied by  a  history  of  the  political  controversies 
which  resulted  in  the  formation  of  and  changes  in 
that  instrument,  together  with  the  presentation  of 
the  actual  situation  of  political  parties  and  ques- 
tions, which,  in  their  turn,  may  produce  constitu- 
tional changes,  would,  if  given  within  a  limited 
space,  present  such  a  view  of  the  institutional 
condition  of  the  United  States  as  to  justify  the 
book  to  the  student  of  political  history. 

At  no  time  in  the  history  of  the  United  States 
have  its  institutions   awakened  such  widespread 

432255 


iv  PREFACE. 

and  friendly  interest  as  at  present.  It  is  true  that 
during  the  great  Civil  War,  from  1861  to  1865,  the 
news  from  the  contending  armies  was  read  with 
greater  avidity  than  that  which  is  awakened  by 
items  of  a  commercial,  agricultural  and  indus- 
trial character,  which  now  in  the  main  fill  the  col- 
umns of  the  press ;  but  a  far  larger  proportion  of 
the  human  family  are  more  largely  interested  in 
these  very  items  than  then  were  in  our  military 
contests,  as  since  that  period  the  United  States 
have  become  the  largest  contributor  to  the  food 
supply  of  the  world. 

The  period  of  the  history  of  our  country,  begin- 
ning with  the  close  of  the  war,  is  a  most  interest- 
ing one  to  the  student  of  political  institutions. 
European  statesmen  doubted  and  many  thoughtful 
Americans  at  times  had  misgivings  whether  our 
institutions  could  bear  the  strain  of  the  problems 
which  the  close  of  the  war  placed  before  the  Na- 
tional Government.  Every  war  issue  has  been  met 
and  successfully  solved.  The  ills  of  an  improperly 
laid  and  collected  revenue,  a  bad  civil  service,  and 
mischievous  methods  of  taxation  and  corrupt  munici- 
pal governments  still  exist,  but  not  one  of  these  evils, 
properly  speaking,  can  be  said  to  date  from  the 
war  period,  but  the  roots  of  them  were  planted 
many  years  before  the  slavery  agitation  was  at  its 


PKEFACE.  V 

height.  Nigh  a  million  of  men,  who  in  the  North 
and  South  were  under  arms,  at  the  close  of  the  war 
were  disbanded  and  absorbed  again  by  the  agricul- 
tural and  industrial  enterprises  of  the  country,  and 
no  appreciable  increase  of  crime  or  lawlessness  was 
visible  in  the  community.  The  Government  re- 
turned to  a  sound  currency  from  a  war  currency  of 
depreciated  paper,  notwithstanding  the  fact  that 
great  masses  believed  the  return  to  specie  payment 
to  be  the  road  to  ruin  of  individual  enterprise.  A 
large  proportion  of  the  debt  created  by  the  war 
has  already  been  paid  off,  and  the  remainder 
refunded,  by  the  establishment  of  a  financial  credit 
second  to  none  in  the  world,  at  so  low  a  rate  of 
interest,  that  the  burden  of  the  debt,  taking  into 
consideration  the  increase  of  population,  is  but  a 
third  of  what  it  was  at  the  close  of  the  war ;  the 
revenue  of  the  country  is  so  far  in  excess  of  its 
financial  needs,  that  but  for  the  ingenuity  of  poli- 
ticians to  devise  jobs  to  absorb  public  funds,  the 
great  debt  of  the  United  States,  although  the  most 
recent  of  the  great  governmental  debts  of  the 
world,  would  have  been,  and  may,  with  an  improved 
civil  service  and  methods  of  representation,  still  be 
the  first  to  be  paid  off. 

All  these  evidences  of  elasticity  of  institutions 
enabling    us   successfully    to   meet  unlooked  for 


Vi  PREFACE. 

emergencies  in  our  country's  needs,  have  from  time 
to  time  elicited  the  admiring  expressions  of  pub- 
licists the-  world  over,  and  caused  them  more 
closely  to  study  institutions  which,  while  they  on 
the  one  hand  secure  individual  freedom  of  action, 
seem  not  to  be  devoid  of  the  power  to  produce 
such  far  reaching  results  as  are  supposed  to  be 
the  special  advantage  of  the  more  paternal  forms 
of  government. 

To  attribute  the  whole  of  the  prosperity  of  the 
people  of  the  United  States  to  their  institutions 
would  be  puerile  in  the  extreme.  Any  constitu- 
tional form  of  government  securing  freedom  of 
action  in  dealing  with  its  practically  exhaustless 
resources  and  advantages,  among  which  may  be 
enumerated  vast  treasures  of  mineral  wealth,  fruit- 
ful soil  and  beneficent  climate,  coupled  with  a 
geographical  situation  which  almost  wholly  pre- 
vents foreign  complications,  would  have  made  for 
the  inhabitants  of  the  vast  domain  known  as  the 
United  States,  a  home  filled  with  comfort,  luxury 
and  wealth,  and  have  attracted  seekers  of  fortune 
from  every  quarter  of  the  globe. 

That  the  institutions  of  the  United  States  did, 
however,  largely  favor  the  growth  of  national 
wealth  cannot  be  denied.  Not  to  speak  of  other 
advantages  afforded  to  individual  enterprise,  the 


PREFACE.  Vll 

entire  absence  of  any  inter-state  Custom-house  from 
Maine  to  Florida,  and  from  the  Atlantic  to  the 
Pacific  coast,  has  given  the  inestimable  and  incal- 
culable advantages  of  free-trade  in  its  most 
absolute  form  over  a  larger  surface  and  among 
more  varied  conditions  of  an  industrial  and  agri- 
cultural character  than  exists  elsewhere  on  the 
face  of  the  globe.  While  it  is  true  that  in  more 
recent  years  (since  1846)  European  nations  have 
let  down  the  barriers  of  protection  towards  each 
other  by  treaty  and  more  liberal  legislation,  yet  in 
the  United  States  the  practical  advantage  of  the  sys- 
tem of  free-trade  commenced  almost  synchronously 
with  the  teaching  of  the  doctrine  by  Adam  Smith 
in  1776.  That  the  errors  of  protection  still  govern 
the  legislation  of  the  United  States  in  their  relations 
with  foreign  countries,  and  to  a  degree  counter- 
balance in  evil  the  benefits  thus  conferred,  is  true 
only  to  the  limited  extent  that  foreign  commerce 
bears  to  a  nation's  internal  exchanges  ;  and  as  the 
proportion  of  foreign  commerce  is  at  best  not  one 
to  twenty  of  domestic  interchange,  the  benefits 
conferred  by  the  freedom  of  exchange  within  the 
United  States,  must  have  been  out  of  all  proportion 
greater  than  the  injury  inflicted  by  the  protective 
system  inaugurated  in  1861,  which  is,  if  the  signs 
of  the  times  do  not  mislead,  fast  crumbling  away. 


yiii  PKEFACE. 

That  there  is  ample  scope  for  the  political  re- 
former, and  much  material  to  work  upon  in  the 
United  States  as  elsewhere,  and  in  some  respects 
more  than  elsewhere,  will  in  the  following  pages  be 
frankly  admitted.  The  methods  of  legislation  are 
wofully  defective,  primitive  and  corrupt ;  the  exist- 
ing system  of  representation  is  faulty,  inharmonious 
and  unphilosophical ;  the  tariff  legislation,  a  mass 
of  injustice  and  incongruities,  resulting  in  a  collec- 
tion of  revenue  at  the  highest  possible  expense  to 
the  consumer.  Municipal  government  is  a  prey 
to  jobbery  and  venality  of  every  description.  The 
Civil  Service  goes  by  favor,  not  by  merit,  and  polit- 
ical parties  divide  upon  all  conceivable  questions 
except  those  of  principle,  and  unite  in  almost  every 
attack  upon  the  public  purse  or  against  personal 
rights  in  favor  of  monopoly  interests.  But  the 
one  crowning  merit  of  American  institutions  may 
be  summed  up  in  the  fact  that  as  an  honest,  earnest, 
and  persistent  appeal  to  the  good  sense  of  the 
people  has  in  the  past  caused  a  spirit  to  arise  able 
to  cope  with  more  formidable  evils,  these  defects 
will  in  all  probability  be  remedied  by  deliberately 
formulated  constitutional  changes  adequate  to 
extirpate  them. 

SIMON  STEKNE. 

30  West  59th  Street,  New  York. 


CONTENTS. 


CHAPTER  I.                                      PAGB 
CONSTITUTION  OP  THE  UNITED  STATES 1 

CHAPTER  II. 
THE  LEGISLATIVE  DEPARTMENT 27 

CHAPTER  III. 
THE  EXECUTIVE  POWER 65 

CHAPTER  IV. 
THE  JUDICIAL  POWEU.  .  96 


CHAPTER  V. 

THE    POST-CONSTITUTIONAL    HlSTOUY    OP    THE    UNITED 

STATES  . .  .  145 


CHAPTER   VI. 

CURRENT  QUESTIONS  PRODUCTIVE   OF  CHANGES  IN  THE 
CONSTITUTION .  223 


CHAPTER  VII. 

THE  STATE   CONSTITUTIONS  :  THE   CHANGES    THEREIN, 

AND  THEIR  DEVELOPMENT 250 

ix 


X  CONTENTS. 

APPENDIX.  PAGK 

ARTICLES  OP  CONFEDERATION   AND  PERPETUAL  UNION 
BETWEEN  THE  STATES 275 

CONSTITUTION  OF  THE  UNITED  STATES 288 

ARTICLES  IN  ADDITION  TO,  AND   AMENDMENT  OF,  THE 
CONSTITUTION  OF  THE  UNITED  STATES 303 

INDEX .  309 


CONSTITUTIONAL    HISTOKY 


OF  THE 


UNITED    STATES. 


CHAPTER  I. 

CONSTITUTION  OF    THE  UNITED   STATES. 

IT  would  far  transcend  the  limits  of  a  book 
intended  for  popular  purposes,  to  enter  into  an 
elaborate  investigation  of  all  the  causes  which 
contributed  to  the  creation  of  the  United  States 
Constitution,  or  to  trace  in  detail  the  reasons  why 
the  constitutions  of  the  American  States  all  came  to 
be  written  documents,  instead  of  being  unwritten 
and  elastic  principles  of  government,  like  the  Consti- 
tution of  Great  Britain.  Without  much  sacrifice 
of  space,  however,  a  few  salient  elements  may  prop- 
erly here  have  attention  drawn  to  them. 

The  powers  of  the  governments  of  the  English 
colonies  in  America,  anterior  to  the  Eevolutionary 
war,  beginning  in  1775,  were  all  written  instruc- 


2  CONSTITUTIONAL   HISTORY. 

tions,  accompanied:  by:*  charters  and  grants  of  title 
and  ^FflMJltyfsd1.  tpainetwarks';  of  government.  The 
English  colonists  we're  'tlius  accustomed  to  written 
documents  as  the  source  of  governmental  power, 
and  the  meaning  of  their  provisions  was  the  test 
of  governmental  limitations. 

At  an  early  date  in  the  history  of  the  origin  and 
settlement  of  Virginia  no  taxes  were  to  be  levied 
by  the  Governor  without  the  consent  of  the  Gen- 
eral Assembly,  and  when  raised  they  were  subject 
to  an  appropriation  by  the  Legislature  of  the 
colony.  The  Plymouth  colonists,  who  were  the 
settlers  of  New  England,  acted  originally  under  a 
form  of  voluntary  compact ;  but  their  descendants 
found  it  difficult  to  obtain  proper  respect  for 
governmental  authority  under  this  voluntary  form 
of  association,  and  in  January,  1629,  by  a  patent 
from  the  Council  under  the  charter  of  King  James 
of  1620,  obtained  sanction  and  authority  for  the 
laws  which  they  subsequently  enacted.  The  fact 
that  this  charter  lacked  royal  assent  was  the  ex- 
cuse for  its  withdrawal  by  Charles  II.,  and  it  was 
not  until  1691,  under  the  charter  granted  by 
"William  and  Mary,  that  unquestioned  royal 
authority  was  granted  for  the  laws  enacted  by  the 
New  England  colonists. 

At  an  early  period  in  the  history  of  the  English 


CONSTITUTION   OF   THE   UNITED   STATES.  3 

colonies  in  America  the  rights  of  the  inhabitants 
to  personal  liberty  were  based  upon  Magna  Charta 
and  the  Declaration  of  Eights ;  and  the  common 
law,  except  in  so  far  as  it  may  have  been  modified 
by  special  charters,  was  the  prevailing  law  of  the 
land. 

The  principle  upon  which  the  common  law  was 
thus  recognized  as  the  prevailing  law,  was  that  it 
was  the  birthright  and  inheritance  of  every  emi- 
grant in  so  far  as  it  was  applicable  to  his  condition. 

There  were  three  classes  of  government,  instituted 
in  America  by  the  English  crown.  One  was  the 
provincial  establishments,  in  which  the  Governor 
was  made  supreme  ;  under  this  form  of  govern- 
ment New  Hampshire,  New  York,  New  Jersey, 
Virginia,  the  Carolinas,  and  Georgia  were  adminis- 
tered. The  second  was  called  proprietary  govern- 
ments, which  embraced  grants  to  individuals  with 
governmental  powers  ;  under  this  form,  in  their 
earliest  history  under  the  English  crown,  Mary- 
land, Pennsylvania,  and  Delaware  were  constituted. 
The  third  was  charter  governments,  of  which 
Massachusetts  was  the  leading  example,  and  Con- 
necticut and  Ehode  Island  as  derivative  forms  from 
the  Massachusetts  grant.  Under  all  these  forms, 
in  process  of  time,  local  Legislatures  were  estab- 
lished, which  drew  to  themselves  a  considerable 


4  CONSTITUTIONAL    HISTOEY. 

proportion  of  the  governmental  power  which  had 
originally  been  parceled  out  to  the  governors  of 
the  colonies.  In  both  the  proprietary  and  charter 
governments,  the  colonists,  during  all  the  early 
struggles  with  the  crown,  insisted  that  they  had  an 
inherent  right  of  representation ;  the  crown,  on  the 
other  hand,  insisted  that  it  was  a  mere  privilege,  held 
at  its  will.  In  some  of  the  colonies  the  laws  were 
required  to  be  sent  to  the  King  for  his  approval ;  in 
others,  they  were  not  so  required  ;  but  the  general 
feeling  on  the  part  of  the  colonists  of  their  right 
to  make  their  own  laws  is  best  expressed  in  the 
declaration  drawn  up  by  the  Congress  of  the  nine 
colonies  assembled  at  New  York  in  October,  1765, 
wherein  they  are  made  to  say,  "  that  they  owe  the 
same  allegiance  to  the  crown  of  Great  Britain  that 
is  owing  from  his  subjects  born  within  the  realm, 
and  all  due  subordination  to  that  august  body,  the 
Parliament  of  Great  Britain ;  that  the  colonists 
are  entitled  to  all  the  inherent  rights  and  liberties 
of  his  natural-born  subjects  within  the  kingdom 
of  Great  Britain;  that  it  is  inseparably  essential 
to  the  freedom  of  a  people  and  the  undoubted 
right  of  Englishmen  that  no  taxes  be  imposed  upon 
them  but  with  their  own  consent,  in  person  or  by 
their  representatives  ;  that  the  people  of  the  colo- 
nies are  not,  and  from  their  local  circumstances 


CONSTITUTION   OF  THE   UNITED   STATES.          O 

cannot,  be  represented  in  the  House  of  Commons ; 
that  the  only  representatives  of  the  colonies  are 
persons  chosen  by  themselves  ;  that  no  taxes  could 
be  constitutionally  imposed  upon  them  but  by  their 
respective  Legislatures ;  that  the  supplies  of  the 
crown  being  free  gifts  of  the  people,  it  is  unreason- 
able and  inconsistent  with  the  principle,  and  spirit 
of  the  British  Constitution  for  the  people  of  Great 
Britain  to  grant  to  His  Majesty  the  property  of  the 
colonies  ;  and  that  trial  by  jury  is  an  inherent  and 
invaluable  right  of  every  British  subject  in  the 
colonies." 

The  united  colonies  admitted  the  right  of  Par- 
liament to  pass  general  acts  for  the  amendment  of 
the  common  law  to  which  the  colonies  were  sub- 
ject, or  general  acts  for  the  regulation  of  trade  and 
commerce  throughout  the  whole  empire,  but  de- 
nied the  right  of  Parliament  to  pass  special  acts 
applicable  only  to  a  part  of  His  Majesty's  subjects, 
to  wit,  the  inhabitants  of  the  colonies,  and  more 
particularly  special  acts  imposing  taxation.  The 
Stamp  Act  being  such  a  special  act,  the  colonies, 
in  1774,  at  the  invitation  of  Massachusetts,  assem- 
bled in  September  of  that  year  at  Philadelphia  in 
a  Congress,  and  thus  inaugurated,  for  the  first  time 
in  the  history  of  the  English-American  colonies,  a 
general  deliberative  body,  deriving  its  authority 


6  CONSTITUTIONAL    HISTORY. 

from  the  people  of  the  colonies  alone.  This  Con- 
gress was  the  revolutionary  government,  which 
continued  to  exercise  power  during  the  whole  of 
the  revolutionary  struggle,  and  was  only  super- 
seded by  the  Articles  of  Confederation,  which 
came  into  existence  during  the  latter  part  of  the 
war  of  Independence.  The  Continental  Congress 
avoided  creating  jealousy  between  the  several  col- 
onies, by  placing  them  all,  independently  of  size  or 
numerical  strength,  on  the  same  footing;  inasmuch 
as  each  combined  delegation  from  each  separate 
colony  had  but  a  single  vote. 

The  second  session  of  this  Congress  of  dele- 
gates met  in  May,  1775,  immediately  after  the 
opening  of  the  war  of  Independence  by  the  battles 
of  Lexington  and  Concord.  This  Congress  then 
assumed  supreme  direction  of  the  war  of  Inde- 
pendence, and  was,  to  all  intents  and  purposes,  the 
government  of  the  united  colonies  after  the  4th 
of  July,  1776,  when  the  Declaration  of  Independ- 
ence was  promulgated  to  declare  their  sever- 
ance from  the  British  crown,  to  make  treaties 
with  foreign  governments,  and  to  establish  a  nation. 
They  appointed  the  officers  of  the  army;  they 
pledged  the  credit  of  the  united  colonies  for  the 
payment  of  the  expenses  of  military  organization  ; 
they  apportioned  the  amounts  which  each  State 


CONSTITUTION   OF   THE   UNITED   STATES.  7 

was  to  pay  toward  the  general  expenses ;  they 
%dopted  rules  for  the  government  of  the  army  and 
navy ;  they  granted  commissions  by  letters  of 
marque  to  capture  the  vessels  of  Great  Britain; 
and  exercised,  in  short,  substantially  all  the 
powers  which  subsequently,  first  by  the  Articles 
of  Confederation  and  then  more  fully  by  the  Con- 
stitution of  the  United  States,  were  ceded  by  the 
several  States  to  the  general  or  national  government. 
The  severance  of  the  colonies  from  Great 
Britain,  both  by  the  facts  of  the  war  and  by  the 
formal  Declaration  of  Independence,  made  each 
particular  colony  a  sovereign  and  independent 
State,  except  in  so  far  as  it  might  voluntarily  con- 
sent to  subject  its  sovereignty,  by  cession,  to  the 
general  government  of  all  the  States.  Although 
this  is  true  of  the  original  thirteen  States,  it  is 
scarcely  true  of  the  remaining  twenty-five,  as  their 
very  existence  as  States  depended  entirely  upon 
the  fiat  of  the  Federal  Congress. 

Several  of  the  States,  between  the  breaking  out 
of  the  War  of  Independence  and  the  formation  of  the 
Articles  of  Confederation,  passed  constitutions  of 
their  own,  in  which  they  formally  declared  their  in- 
dependence from  the  mother  country,  and  reenacted 
such  parts  of  Magna  Charta  and  the  Declaration 
as  were  applicable  to  their  condition,  together 


8  CONSTITUTIONAL    HISTORY. 

with  statements  of  the  rights  of  man  expressive  of 
the  wider  views  and  the  more  revolutionary  prin- 
ciples which  had  found  acceptance  with  the  colon- 
ists from  the  freedom  of  movement  and  independ- 
ence of  character  incident  to  and  formed  by 
American  colonial  conditions.  These  views,  as  to 
forms  of  expression,  were  very  considerably  influ- 
enced by  the  theoretical  teachings  of  the  French 
Encyclopaedists,  whose  works,  to  no  small  degree, 
contributed  to  quicken  the  thoughts 'and  methods 
of  expression  of  Jefferson,  Adams,  Madison,  and 
Hamilton,  who  were  the  leading  minds  of  the  Con- 
tinental Congress. 

Virginia,  New  Hampshire,  New  York,  and  South 
Carolina  had,  before  1778,  passed  constitutions  for 
the  people  of  their  States  as  sovereignties,  and 
subsequently  every  State  of  the  Union,  after  the 
Articles  of  Confederation  were  formed,  by  a  prop- 
erly delegated  convention  of  its  people,  put  in 
shape,  and,  by  subsequent  Submission  to  the  people, 
caused  the  passage  of  organic  laws,  called  constitu- 
tions, by  which  the  general  framework  of  the 
institutions  under  which  they  were  living  was 
mapped  out,  the  division  of  Executive,  Judicial, 
and  Legislative  functions  clearly  defined,  and  the 
rights  inherent  in  the  people  beyond  governmental 
control,  expressed  and  insisted  upon. 


CONSTITUTION   OF  THE  UNITED   STATES.  9 

The  revolutionary  Congress,  recognizing  the  fact 
that  its  existence  would  end  with  the  struggle,  and 
acting  on  the  assumption  that  the  struggle  would 
result  favorably  to  the  colonies,  appointed  in  June, 
1776,  a  committee  composed  of  one  member  from 
each  colony,  to  consider  the  form  of  Articles  of  Con- 
federation to  be  entered  into  between  the  colonies, 
as  a  permanent  form  of  government.  These  Articles 
of  Confederation  formed  the  subject  of  debate  in 
Congress  until  the  15th  of  November,  1777,  when 
they  were  adopted.  A  circular  letter  was  prepared 
to  the  several  States  requesting  authority  from  the 
States  to  authorize  their  delegates  to  Congress  to 
subscribe  the  Articles  of  Confederation.  The  States 
proposed  many  amendments,  which  wereall  rejected 
by  Congress,  because  Congress  deemed  it  inexpedi- 
ent to  accept  any  amendments  for  fear  of  the  delay. 
A  draft  was  thereupon  prepared  and  sent  to  all  the 
States  on  the  26th  of  June,  1778,  and  was  ratified 
by  them  all,  except  Delaware  and  Maryland,  which 
respectively  withheld  their  ratifications,  the  one 
until  1779  and  the  other  until  1781. 

From  the  moment  of  the  organization  of  govern- 
ment under  the  Articles  of  Confederation,  the 
question  of  the  ownership  of  the  lands  which 
theretofore  had  belonged  to  the  crown,  in  the 
several  States,  was  one  irritating  subject  between 


10  CONSTITUTIOISTAL    HISTORY. 

the  States,  and  the  not-clearly  defined  boundaries 
between  the  States  was  another.  The  only  way  to 
overcome  the  difficulty  first  named,  was  to  conform 
to  the  suggestion  of  Congress,  that  the  several 
States  should  cede  the  crown  lands  within  their 
borders  to  the  general  government,  as  lands  belong- 
ing to  the  people  at  large.  The  name  of  the  con- 
federacy was  the  United  States  of  America.  Under 
it  the  following  powers  of  government  were  secured 
to  the  nation  and  ceded  by  the  States : 

Congress  was  empowered  to  determine  on  peace 
or  war  with  foreign  nations,  of  sending  and  receiving 
ambassadors,  making  treaties  of  commerce;  but 
each  State  was  free  to  levy  whatever  import  or 
export  duties  it  saw  fit,  to  determine  upon  the 
rules  of  capture  by  land  or  sea,  appointing  courts 
for  the  trial  of  cases  of  captures  on  high  seas  and 
piracy.  In  all  cases  of  dispute  between  the  States, 
if  the  agents  of  the  States  could  not  by  joint  con- 
sent agree  upon  judges  to  try  their  causes  as  they 
might  arise,  Congress  was  empowered  to  constitute 
a  court  by  a  most  cumbersome  method.  Three 
persons  were  appointed  from  each  State,  and  then 
the  disputing  States  struck  one  each,  until  thir- 
teen remained,  from  which  number  Congress  drew 
out  seven  or  nine  by  lot,  a  majority  of  which  de- 
termined the  cause  finally. 


CONSTITUTION    OF   THE   UNITED   STATES.        11 

Congress  was  also  empowered  to  regulate  the 
coinage,  to  afford  postal  facilities,  and  to  appoint 
the  officers  for  the  land  and  naval  forces. 

During  the  recess  of  Congress,  its  powers  were 
conferred  upon  a  committee  of  the  States — one 
from  each  State — with  the  limitation,  however, 
that  upon  almost  every  important  question  it 
required  the  assent  of  nine  States  before  the 
measure  could  become  operative  as  a  law. 

Under  these  Articles  of  Confederation  the  treaty 
of  peace  with  England  was  concluded  and  the 
American  nation  was  governed  until  the  final  adop- 
tion of  the  Constitution  of  the  United  States.  The 
main  defect  of  the  Articles  of  Confederation  was, 
that  although  powers  sufficiently  adequate  to  cre- 
ate a  government  were  ceded,  there  was  no  power 
to  raise  revenue,  to  levy  taxes,  or  to  enforce  the 
law,  except  with  the  consent  of  nine  States ;  and 
although  the  government  had  power  to  contract 
debts,  there  were  no  means  by  which  to  discharge 
them.  The  government  had  power  to  raise  armies 
and  navies,  but  no  means  wherewith  to  pay  them, 
unless  the  means  were  voted  by  the  States  them- 
selves ;  they  could  make  treaties  with  foreign  pow- 
ers, but  had  no  means  to  coerce  a  State  to  obey 
such  treaty.  In  short,  it  was  a  government  which 
had  the  power  to  make  laws,  but  no  power  to  pun- 


12  CONSTITUTIONAL    HISTOKY. 

ish  infractions  thereof.  "Washington  himself  said  . 
"  The  Confederation  appears  to  me  to  be  little 
more  than  the  shadow  without  the  substance,  and 
Congress  a  nugatory  body." 

Chief  Justice  Story,  in  summing  up  the  leading 
defects  of  the  Articles  of  Confederation,  says : 
"  There  was  an  utter  want  of  all  coercive  authority 
to  carry  into  effect  its  own  constitutional  measures ; 
this  of  itself  was  sufficient  to  destroy  its  whole 
efficiency  as  a  superintendent  government,  if  that 
may  be  called  a  government  which  possessed  no 
one  solid  attribute  of  power.  In  truth,  Congress 
possessed  only  the  power  of  recommendation. 
Congress  had  no  power  to  exact  obedience  or  pun- 
ish disobedience  of  its  ordinances ;  they  could 
neither  impose  fines  nor  direct  imprisonments,  nor 
divest  privileges,  nor  declare  forfeitures,  nor  sus- 
pend refractory  officers.  There  was  no  power  to 
exercise  force." 

This  absence  of  all  coercive  power  was  most 
directly  and  injuriously  felt  in  the  financial  adminis- 
tration of  the  nation.  The  requisitions  of  Congress 
for  money  were  disregarded  at  will.  The  conse- 
quence was,  that  the  treasury  of  the  United  States 
was  empty ;  the  credit  of  the  confederacy  was  gone  ; 
and  while  public  burdens  were  increasing,  public 
faith  was  prostrate.  Even  the  interest  of  the  pub- 


CONSTITUTION   OF   THE   UNITED   STATES.        13 

lie  debt  remained  unpaid,  and  the  bills  of  credit 
that  had  been  issued  during  the  Revolution  and 
immediately  subsequent  thereto  sank  to  so  low 
a  value  that  the  public  debt  was  substantially 
repudiated.  As  an  illustration  of  this  fact,  it  may 
be  remarked  that  of  the  requisitions  for  the  pay- 
ment of  the  interest  upon  the  domestic  debt  from 
1782  to  1786,  which  amounted  to  more  than  six 
million  dollars,  only  a  million  was  paid.  Each 
State  saw  fit  to  exercise  its  sovereign  power  to 
regulate  commerce  with  the  other  States,  and  this 
created  dissensions  between  the  States ;  so  that  in 
1784  the  national  Congress  formally  declared  its 
inability  to  maintain  the  public  credit  or  to  enforce 
obedience  to  its  own  dictates,  and  from  time  to  time, 
up  to  1787,  declared  in  various  public  ordinances 
its  inability  even  to  enforce  its  own  treaty  power. 

This  state  of  things  became  intolerable,  and  was, 
by  the  leading  men  who  had  guided  the  colonies 
through  the  struggles  of  the  War  of  Independence 
and  aided  in  the  formation  of  the  Articles  of  Con- 
federation, recognized  as  a  mischief  which  would 
result  in  the  disintegration  of  the  union  of  the 
States.  Hence  an  active  propaganda  was  instituted 
in  all  the  States  for  the  preparation  of  more  perfect 
articles  of  union  and  the  creation  of^  a  government 
representing  the  States  as  a  nation.  In  February, 


14  CONSTITUTIONAL    HISTORY. 

1787,  a  resolution  was  adopted  by  Congress  recom- 
mending a  convention  in  Philadelphia  of  delegates 
from  the  several  States  for  the  purpose  of  revising 
the  Articles  of  Confederation,  and  reporting  to 
Congress  and  the  several  Legislatures  such  altera- 
tions and  provisions  therein  as  should,  when 
agreed  to  in  Congress  and  confirmed  by  the  sev- 
eral States  under  the  Federal  Constitution,  be  ade- 
quate to  the  exigencies  of  government  and  the 
preservation  of  the  Union. 

The  convention  met,  and,  after  very  full  consid- 
eration, determined  that  amendments  to  the  Ar- 
ticles of  Confederation  would  be  inadequate  for  the 
purposes  of  the  government,  and  prepared  a  new 
Constitution,  the  ratification  of  the  conventions  of 
nine  States  to  be  deemed  sufficient  for  the  estab- 
lishment of  the  constitution  between  the  States  so 
ratifying  the  same.  This  Constitution  was  submitted 
to  the  several  States,  and  was  ratified  by  eleven 
of  them,  North  Carolina  and  Rhode  Island  standing 
out,  the  former  until  November,  1789,  and  the 
latter  until  May,  1790. 

Although  the  government  was  organized  by  the 
ratification  by  eleven  States,  the  ratification  by  all 
the  States  made  that  instrument  the  supreme  law 
of  the  land,  and  that  Constitution,  with  its  amend- 
ments, from  that  time  forth,  remained  the  chart 


CONSTITUTION    OF   THE   UNITED    STATES.        15 

under  which  the  government  of  the  United  States 
has  been  administered  in  all  its  foreign  and  inter- 
state relations. 

In  the  construction  of  this  chart  of  government 
it  must  be  remembered  that  the  government  of  the 
United  States  is  one  of  delegated  powers ;  that  in 
theory  the  States  possess  all  the  sovereign  powers 
not  delegated,  either  expressly  or  by  necessary 
implication,  to  the  general  government,  and  that 
the  vast  body  of  law,  known  as  constitutional 
law,  in  the  United  States,  deals  first  with  the  in- 
terpretation of  these  delegated  powers  to  the  gen- 
eral government,  and  secondly  with  the  reserved 
rights  of  the  States  under  their  respective  State 
constitutions,  and  the  reserved  rights  of  the  peo- 
ple never  delegated  either  to  the  State  or  to  the 
general  government. 

The  history  of  the  Constitution  shows,  first,  that 
the  compact  between  the  States  was  intended  to  be 
indissoluble.  The  Articles  of  Confederation  in 
terms  said  so,  and  when  they  were  found  inade- 
quate for  the  purpose,  the  Constitution  was  framed, 
"to  form  a  more  perfect  union."  Likewise  the 
States  are  indestructible.  The  Constitution  is  a 
compact  of  States,  and  the  States  are,  therefore,  an 
integral  part  of  the  nation  ;  without  them  there  is 
no  compact  which  can  bind  other  States.  This  has 


16  CONSTITUTIONAL    HISTOEY.      . 

been  decided  in  a  recent  case  (Texas  vs.  White)  by 
the  Supreme  Court  of  the  United  States. 

The  Constitution  makes  the  national  government, 
in  all  matters  delegated  to  it,  the  supreme  power 
of  the  land,  and  not  only  is  it  the  supreme  power 
in  all  such  matters  wherein  the  Congress  of  the 
United  States  has,  in  pursuance  to  constitutional 
authority,  acted,  but  it  is  the  supreme  authority 
whenever  it  chooses  to  take  up  a  subject  which  is 
delegated  to  the  government  of  the  United  States, 
although  the  States,  in  the  absence  of  such  action 
on  the  part  of  the  general  government,  have  seen  fit 
to  pass  la\^s  of  their  own  to  meet  the  emergencies. 
A  notable  instance  of  this  is  bankruptcy.  From 
time  to  time  bankruptcy  laws  have  existed  in  the 
United  States,  enacted  by  the  general  Congress, 
and  have  been  repealed.  During  the  period  of  re- 
peal the  various  States  have  enacted  insolvency 
and  bankrupt  laws  which,  on  the  instant  when  the 
general  government  again  took  up  the  subject  by 
passing  a  new  bankruptcy  law,  were  all  ipso  facto  re- 
pealed and  remained  so  repealed  until  the  national 
law  was  in  its  turn  repealed. 

The  Territories  of  the  United  States  have  no  re- 
served rights.  They  can  be  dealt  with  by  the  gen- 
eral government  in  such  way  as  it  may  see  fit,  and 
not  until  a  Territory  becomes  sufficiently  populous 


CONSTITUTION   OF  THE   UNITED   STATES.        17 

to  be  admitted  as  a  State  does  it  become  clothed 
with  all  the  reserved  rights  of  States,  and  when 
so  clothed  it  is  as  sovereign  and  independent  a 
community  as  though  it  had  been  one  of  the  origi- 
nal thirteen  States  which  had  entered  into  the 
compact. 

Amendments  to  the  Constitution  are  provided 
for  in  two  ways.  One,  by  giving  to.  Congress  the 
initiative  by  passing  amendments  by  a  vote  of  two- 
thirds  of  both  Houses  and  subjecting  such  amend- 
ments to  the  ratification  of  the  Legislatures  of  the 
several  States,  to  be  so  ratified  by  three-fourths  of 
the  several  States,  or,  by  conventions  of  three- 
fourths  thereof,  as  one  or  the  other  of  the  modes 
of  ratification  might  be  proposed  by  Congress. 
Another  mode  provided  by  the  Constitution  is,  to 
call  a  convention  for  proposing  amendments  on 
the  application  of  the  Legislatures  of  the  several 
States  ;  the  work  of  which  convention  must  be 
equally  ratified  by  the  Legislatures  of  three- 
fourths  of  the  States  or  by  conventions  in  three- 
fourths  thereof.  The  only  limitation  upon  the 
power  of  amendment  of  the  Constitution  is,  that  no 
State,  without  its  consent,  shall  be  deprived  of  its 
equal  suffrage  in  the  Senate.  This  provision  was 
deemed  necessary  in  order  to  prevent  an  amend- 
ment by  the  more  powerful  and  larger  States  which 


18  CONSTITUTIONAL    HISTOET. 

should  deprive  the  few  smaller  States,  such  as 
Khode  Island  or  Delaware,  of  their  equal  repre- 
sentation in  the  Senate.  This  power  of  amendment 
takes  away  all  excuse  for  revolution,  because  the  in- 
strument which  is  the  supreme  law  of  the  land  pro- 
vides a  method  by  which  the  popular  will  can  act 
upon  it  so  as  to  remedy  or  remove  any  existing  or 
supposed  abuses. 

The  general  provisions  of  the  Constitution  which 
do  not  fall  under  the  divisions  of  Legislative,  Ju- 
dicial and  Executive  functions,  are  enumerated  in 
the  fourth  and  sixth  articles  of  the  Constitution  of 
1789,  the  amendments  of  1789,  and  1790,  1794, 
1798,  1804,  and  what  are  known  as  the  thirteenth, 
fourteenth  and  fifteenth  amendments,  which  were 
the  result  of  the  Civil  War.  These  provisions 
in  general  terms  provide  that  full  faith  and  credit 
shall  be  given  in  each  State  to  the  public  acts, 
records,  and  judicial  proceedings  of  every  other 
State ;  that  the  citizens  of  each  State  shall  be  en- 
titled to  the  privileges  and  immunities  of  the  citi- 
zens of  the  several  States;  that  persons  who  are 
fugitives  from  justice  shall  be  delivered  up  to 
the  State  having  jurisdiction  of  the  crime ;  a  pro- 
vision by  which  persons  who  were  held  to  labor 
in  one  State  were  required  to  be  delivered  up  if 
they  fled  into  another  for  the  purpose  of  escap- 


CONSTITUTION   OF  THE   UNITED   STATES.        19 

ing  from  such  servitude  ;  a  section  allowing  States 
to  be  admitted  into  the  Union,  but  prohibiting  Con- 
gress from  creating  new  States  from  existing  States 
without  the  consent  of  the  latter;  and  that  the 
United  States  shall  guarantee  to  every  State  in  the 
Union  a  republican  form  of  government,  shall  pro- 
tect each  against  invasion,  and  on  the  application 
of  the  Legislature,  or  of  the  Executive  of  a  State 
when  the  Legislature  cannot  be  convened,  protect 
it  from  domestic  violence. 

The  first  amendments  which  were  deemed  neces- 
sary to  the  Constitution  after  its  formation  were 
proposed  almost  immediately  after  its  adoption, 
and  were  rather  in  the  nature  of  after-thoughts 
better  to  protect  th3  rights  of  individual  liberty. 
The  first  article  of  the  amendments  provided  that 
Congress  shall  make  no  law  respecting  the  estab- 
lishing of  religion,  or  prohibiting  the  free  exercise 
thereof,  or  abridging  the  freedom  of  speech,  or  of  the 
press,  or  of  the  right  of  the  people  peaceably  to  as- 
semble, or  to  petition  the  government  for  a  redress  of 
grievancos.  The  second  one  provides  that  a  well- 
regulated  militia  being  necessary  to  the  security 
of  a  free  State,  the  right  of  the  people  to  keep  and 
bear  arms  shall  not  be  infringed.  The  third,  lihat 
no  soldier  shall  in  time  of  peace  be  quartered  at 
any  house  without  the  consent  of  the  owner,  and 


20  CONSTITUTIONAL    HISTORY. 

in  time  of  war,  in  a  manner  only  to  be  prescribed 
by  law.  The  fourth,  the  right  of  the  people  to  be 
secure  in  their  persons,  houses,  papers  and  effects 
against  unreasonable  searches  and  seizures,  shall 
not  be  violated,  and  no  warrants  shall  issue  but 
upon  probable  cause  supported  by  oath  or  affirma- 
tion, and  particularly  describing  the  place  to  be 
searched  and  the  person  or  things  to  be  seized. 
The  fifth,  that  no  person  shall  be  held  to  answer  for 
a  capital  or  otherwise  infamous  crime  unless  upon 
a  presentment  or  indictment  of  a  grand  jury,  except 
in  cases  arising  in  the  land  or  naval  forces,  of  the 
militia  when  in  actual  service  in  time  of  war,  or 
public  danger ;  and  that  no  person  shall,  for  the 
same  offense,  be  put  twice  in  jeopardy  of  life  or 
limb,  nor  be  compelled  in  any  criminal  case  to 
be  a  witness  against  himself,  nor  be  deprived  of 
life,  liberty,  or  property,  without  due  process  of 
law,  and  that  private  property  shall  not  be  taken 
for  public  use  without  just  compensation.  The 
sixth  is  to  the  effect  that  in  all  criminal  prosecu- 
tions the  accused  shall  enjoy  the  right  to  a  speedy 
and  public  trial  by  an  impartial  jury  of  the  State 
and  district  wherein  the  crime  shall  have  been 
committed,  which  district  shall  have  been  pre- 
viously ascertained  by  law,  and  to  be  informed  of 
the  nature  and  cause  of  the  accusation,  to  be  con- 


CONSTITUTION   OF  THE  UNITED   STATES.        21 

fronted  with  the  witnesses  against  him,  and  to  have 
compulsory  process  for  obtaining  witnesses  in  his 
favor,  and  to  have  the  assistance  of  counsel  for  his 
defense.     The  seventh,  that  in  all  suits  at  common 
law,  where  the  value  in  controversy  shall  exceed 
twenty  dollars,  the    right  of  trial  by  jury  shall  be 
preserved.    The  eighth  is  to  the  effect  that  exces- 
sive bail  shall  not  be  required,  nor  excessive  fines 
imposed,  nor  cruel  or  unusual  punishments  inflicted. 
The  ninth,  to  prevent  any  misconstruction  by  the 
courts,  that  rights   not  specially  reserved  by  the 
people  are  therefore  withheld  from  arbitrary  power, 
specifically  says  that  the  enumeration  in  the  Con- 
stitution of  certain  rights  shall  not  be  construed  to 
deny  or  disparage  others  retained  by  the  people. 
The  tenth,  that  powers  not  delegated  to  the  United 
States  by  the  Constitution,  or  prohibited  by  it  to  the 
States  are  reserved  to  the  States  respectively  or  to 
the  people.     The  eleventh  was  proposed  in  Sep- 
tember,  1794,  by  Congress,  and   was  ratified  in 
January,  1798,  and  is  to  the  effect  that  the  judicial 
power  of  the  United  States  shall  not  be  construed 
to  extend  to  any  suit  in  law  or  equity  commenced  or 
prosecuted  against  one  of  the  United   States  by 
citizens  of  another  State,  or  by  citizens  or  subjects  of 
any  foreign  State.    The  force  and  effect  of  the  twelfth 
amendment,  which  was  adopted  in  1804,  in  rela- 


22  CONSTITUTIONAL    HISTOKY. 

tion  to  the  election  of  the  President  of  the  United 
States,  will  be  considered  in  connection  with  the 
creation  and  powers  of  the  Executive  department 
of  the  government.  The  thirteenth,  fourteenth 
and  fifteenth  amendments  were  the  result  of  the 
Civil  War,  1861-1865.  Their  declared  object,  pur- 
pose and  meaning  were  forever  to  abolish  the  sys- 
tem of  slavery  or  domestic  servitude,  and  to  prevent 
thereafter  all  class  distinctions  or  inequalities 
before  the  law  arising  from  color,  race,  or  previous 
condition  of  servitude.  A  stringent  provision  was 
made  to  prevent  persons  from  holding  office  who 
had  been  in  office  and  had  taken  an  oath  to  sup- 
port the  Constitution  of  the  United  States  prior  to 
the  rebellion,  but  who,  notwithstanding  such  oath, 
were  engaged  subsequent  thereto  in  insurrection  or 
rebellion.  It  was  provided,  however,  that  Congress, 
by  a  vote  of  two-thirds  of  each  House,  might  remove 
such  disability.  A  provision  was  made  to  pre- 
vent the  validity  of  the  public  debt  of  the  United 
States  from  being  questioned,  and  to  prevent  the 
United  States,  or  any  State,  from  assuming  any 
debt  or  obligation  incurred  in  aid  of  insurrection  or 
rebellion  against  the  United  States,  or  recognizing 
any  claim  for  the  loss  or  emancipation  of  any  slave, 
and  that  all  such  debts  and  obligations  and  claims 
shall  be  held  illegal  and  void.  The  representative 


CONSTITUTION   OF   THE   UNITED   STATES.        23 

system,  by  the  representation  of  the  majority  in 
geographically  denned  districts,  was  adopted  as  the 
cardinal  and  underlying  principle  of  creating  the 
law-making  power  under  the  Constitution  of  the 
United  States,  and  of  the  several  States,  and  wher- 
ever Congress  is  required  to  act,  or  the  people  of 
the  several  States  are  required  to  act,  through 
their  Legislatures,  the  meaning  thereof  is  that  such 
congressional  action  or  legislative  action  shall  be 
done  by  a  mere  majority,  unless  otherwise  declared. 

In  considering  also  the  provisions  of  the  Consti- 
tution, it  must  be  borne  in  mind  that  they  are 
largely  the  result  of  compromise.  The  jealousy 
of  the  States  of  each  other  was  the  cause  of  the 
threatened  dissolution  of  the  Confederacy  under 
the  system  of  government  which  prevailed  in  the 
United  States  of  America  from  the  close  of  the  war 
in  1783  until  1789,  the  year  of  the  adoption  of  the 
Constitution  of  the  United  States. 

When,  in  consequence  of  the  pressure  that  was 
created  by  the  evident  inadequacy  of  the  Articles 
of  Confederation  to  create  a  permanent  form  of 
government,  the  people  of  the  United  States  called 
a  convention  to  consider  provisions  for  the  forma- 
tion of  a  more  perfect  union,  the  members  of  the 
convention  were,  more  or  less,  under  the  influ- 
ence of  this  local  jealousy,  and  the  organization  of 


24  CONSTITUTIONAL    HISTORY. 

the  Senate,  giving  to  each  State  two  members, 
independent  of  the  numbers,  wealth,  or  position  of 
the  State,  was  intended  to  placate  the  smaller 
States  and  to  make  them  feel  that,  although  under 
a  system  of  representation  dependent  upon  nu- 
merical strength  they  would  lose  power  in  the  lower 
House,  they  would  still,  by  the  veto  power  that  the 
upper  House  had  over  the  legislation  of  the  lower, 
preserve  their  dignity  as  States  and  prevent  the 
possibility  of  the  passage  of  laws  detrimental  to 
their  interests.  Thus,  it  happens,  for  instance, 
that  the  new  State  of  Colorado,  although  having 
two  Senators,  has  but  one  Representative,  its 
numerical  strength  being  just  sufficient  for  a  single 
Representative  in  the  House  of  Representatives ; 
yet  its  admission  as  a  State  entitles  it  to  equal 
position  in  the  Senate  with  the  State  of  New  York 
with  its  five  millions  of  inhabitants. 

From  an  early  period  in  the  history  of  the  United 
States,  down  to  the  commencement  of  the  Civil 
War,  the  general  theory  of  whether  the  Constitu- 
tion of  the  United  States  was  a  compact  between 
the  several  States,  or  was  a  framework  of  govern- 
ment which  did  not  admit  of  the  idea  of  compact, 
was  hotly* disputed.  On  the  one  hand  it  was  con- 
tended that,  as  there  is  no  common  umpire  or 
tribunal  authorized  to  decide  as  a  last  resort  upon 


CONSTITUTION   OF   THE   UNITED   STATES.        25 

the  powers  and  interpretation  of  the  Constitution, 
each  State  had  a  right  to  construe  the  compact  for 
itself.  Such  was  the  resolution  of  Virginia  as  early 
as  1829 ;  such  was  the  resolution  of  South  Carolina 
when  it  attempted  to  nullify  the  tariff  legislation 
of  the  United  States  in  1831.  But  this  theory  is 
refuted  by  the  very  wording  of  the  Constitution 
itself,  which  says  that  it  is  ordained  and  established 
by  the  people  of  the  United  States  to  create  a  more 
perfect  union  ;  and,  as  all  the  States  were  parties  to 
it,  no  one  Sfcate  could  construe  it  against  the  rights 
of  the  other  States.  Such  an  interpretation  is 
against  the  theory  of  government  itself,  which  pro- 
hibits any  State  which  has  once  delegated  its  powers 
to  a  sovereign,  from  reasserting  such  power,  with- 
out the  consent  of  such  sovereign  ;  and  leads  to 
the  reductio  ad  absurdum  of  claiming  the  possibility 
of  carrying  on  a  government  which  would  give  to 
each  member  thereof  the  right  to  deny  the  very 
existence  of  the  government  itself  whenever  it  feels 
the  pressure  of  the  governmental  hand. 

On  all  constitutional  questions  the  Constitution 
itself  appointed  a  tribunal  which  was  to  interpret 
and  expound  its  provisions,  and,  therefore,  no 
province  was  left  to  the  Legislatures  of  the  various 
States  that  for  an  instant  admitted  their  interven- 
tion to  determine  the  limit,  the  extent,  and  the 
2 


26  CONSTITUTIONAL    HISTORY. 

functions  of  the  United  States  Government.  The 
Supreme  Court  of  the  United  States  was  the 
final  and  only  interpreter  of  all  the  powers  con- 
ferred by  the  various  States  upon  the  general 
government.  The  Civil  War  of  1861-1865  origin- 
ating from  the  desire  to  preserve  slavery  on  the 
part  of  the  Southern  States,  uninterfered  with  by 
the  sentiments  or  feelings  of  the  Northern  States, 
and  also  to  maintain  the  doctrine  of  State  rights, 
resulting  disastrously  to  the  South,  took  that 
branch  of  constitutional  controversy  out  of  Ameri- 
can politics.  Since  the  thirteenth,  fourteenth, 
and  fifteenth  amendments  the  political  fact  has 
been  established  that  the  United  States  Government 
is  indissoluble,  and  that  the  Constitution  of  the 
United  States  created  not  a  partnership  between 
the  States,  but  a  form  of  government  for  the  States, 
from  which  such  States  could  not  withdraw;  and 
that,  instead  of  remitting  questions  between  the 
States  to  the  arbitrament  of  the  sword,  they  had  to 
find  peaceful  solution  after  argument  before  the 
Supreme  Court  of  the  United  States,  or  by  agitation 
for  amendment  of  the  Constitution  itself. 


CHAPTEE  H. 

THE  LEGISLATIVE  DEPARTMENT. 

WE  have  thus  far,  in  our  examination  of  the  pro- 
visions of  the  Constitution  of  the  United  States, 
shown  that  the  reason  why  the  Articles  of  Confed- 
eration failed  to  accomplish  their  purpose  to  create 
a  nation,  was  because  the  national  authority,  as 
created  by  such  Articles,  was  stripped  of  the  ele- 
ment of  sanction.  There  was,  in  the  first  place, 
no  supreme  executive  power  ;  in  the  second  place, 
the  Federal  Congress  had  simply  power,  until 
the  adoption  of  the  Constitution  of  1789,  to  pass 
laws  without  enforcing  them,  and  they  were  there- 
fore in  the  nature  of  mere  recommendations.  The 
clear  and  unequivocal  surrender  of  power  on  the 
part  of  the  States  of  certain  well-defined  govern- 
mental functions  to  the  national  government,  and  the 
general  transfer  of  power  involved  in  that  grant  of 
the  Constitution  which  says  "  that  all  legislative 
power  by  the  Constitution  granted  shall  be  vested 
in  a  Congress  of  the  United  States  which  shall  con- 

27 


28  CONSTITUTIONAL    HISTOEY. 

sist  of  a  Senate  andHouse  of  Eepresentatives,"  as  in- 
terpreted by  the  Supreme  Court  of  the  United  States, 
gives  to  the  national  Legislature  power  to  pass 
laws  on  all  subjects  of  which  the  United  States  has 
jurisdiction  either  by  direct  grant  or  by  implication. 
The  members  of  the  House  of  Representatives  are 
composed  of  members  chosen  every  second  year  by 
the  people  of  the  several  States,  and  the  qualifica- 
tions requisite  for  electors  are  the  same  as  those 
which  the  State  constitutions  require  for  electors  of 
members  in  the  same  branch  of  the  respective  State 
Legislatures.  The  qualification  of  representatives 
are  that  each  representative  shall  have  attained  the 
age  of  twenty-five  years,  that  he  shall  have  been 
seven  years  a  citizen  of  the  United  States  ;  and  that 
he  be  an  inhabitant  of  the  State  in  which  he  shall  be 
chosen.  Under  the  Constitution  of  1789  the  rep- 
resentatives as  well  as  direct  taxes  were  apportioned 
among  the  several  States  according  to  the  number  of 
their  inhabitants,  which  included  all  free  persons 
and  those  bound  to  service  for  a  term  of  years ; 
three-fourths  of  all  other  persons,  which  of  course 
meant  slaves,  and  excluded  Indians  not  taxed.  The 
first  enumeration  after  the  adoption  of  the  Constitu- 
tion was  to  be  made  within  three  years  after  the  first 
meeting  of  the  Congress,  and  thereafter  every  ten 
years.  The  number  of  representatives  then  fixed  was 


THE  LEGISLATIVE  DEPARTMENT.  29 

to  be  one  for  every  thirty  thousand,  but  each  State 
was  to  have  at  least  one  representative.  This  provi- 
sion was  subsequently  changed  by  the  fourteenth 
amendment,  to  the  requirement  that  the  represen- 
tatives should  be  apportioned  among  the  several 
States  according  to  their  respective  numbers,  count- 
ing the  whole  number  of  persons  in  each  State,  ex- 
cluding Indians  not  taxed  ;  and  that  when  the  right 
to  vote  at  any  election  for  the  choice  of  electors  for 
President  and  Vice-President  of  the  United  States, 
of  Eepresentatives  in  Congress,  of  the  Executive 
and  Judicial  officers  of  a  State,  or  members  of  the 
Legislature  thereof,  is  denied  to  anyone  of  the  male 
inhabitants  of  such  State,  being  twenty-one  years  of 
age  and  a  citizen  of  the  United  States,  or  in  any 
way  abridged,  except  for  participation  in  rebellion 
or  other  crime,  the  basis  of  representation  therein 
shall  be  reduced  in  the  proportion  which  the  num- 
ber of  male  citizens  shall  bear  to  the  whole  number 
of  male  citizens  twenty-one  years  of  age  in  such 
State.  The  object  of  this  amendment,  which  was 
adopted  in  1866,  was  to  prevent  the  slave  States, 
which  theretofore  had  been  in  rebellion,  from 
abridging  or  limiting  the  right  of  suffrage  on  the 
part  of  the  negroes  for  State  offices,  without  incur- 
ring the  penalty  of  diminishing  thereby  their  rep- 
resentation in  the  House  of  Representatives  of  the 


30  CONSTITUTIONAL    HISTORY. 

United  States.  Under  the  Constitution  as  it  origin- 
ally stood  the  States  were  at  liberty  to  determine 
as  they  saw  fit  the  manner  in  which  these  repre- 
sentatives were  to  be  elected  within  the  States,  or 
Congress  was  at  liberty  to  legislate  upon  the  sub- 
ject in  furtherance  of  the  constitutional  provision 
as  to  representation. 

Congress  did  from  time  to  time  apportion  the  num- 
ber of  representatives  to  each  State  in  conformity 
with  the  census  of  each  decade,  so  that  in  1872, 
under  the  census  of  1870,  an  apportionment  was 
made  by  which  the  number  of  the  members  of 
the  House  of  Representatives  was  fixed  at  292. 
As  the  population  of  the  United  States  from 
time  to  time  increased,  Congress  likewise  by  law 
advanced  the  limitation  of  the  number  of  persons 
who  were  entitled  to  single  representatives,  in 
order  that  the  popular  body  should  not  become  too 
numerous  for  purposes  of  deliberation ;  so  that 
under  the  census  of  1870,  by  act  of  1872,  each  130,000 
of  the  population  is  entitled  to  one  representative. 
By  the  act  of  1872  making  such  apportionment, 
following  the  preceding  acts  of  apportionment, 
it  is  required  that  Representatives  to  Congress 
shall  be  elected  by  districts  composed  of  contigu- 
ous territory,  containing  as  nearly  as  practicable 
an  equal  number  of  inhabitants,  and  equal  in 


THE   LEGISLATIVE  DEPARTMENT.  31 

number  to  the  number  of  representatives  to  which 
the  State  in  which  they  lie  may  be  entitled  in  Con- 
gress, no  one  district  electing  more  than  one  rep- 
resentative. This  is  followed  by  a  provision  that 
as  to  the  then  immediately  succeeding  Congress 
the  additional  representatives  to  which  each  State 
should  be  entitled  under  the  apportionment  might, 
until  otherwise  provided  for  by  the  Legislature,  be 
voted  for  upon  a  ticket  at  large.  The  only  national 
requirement,  therefore,  as  to  election  of  representa- 
tives is,  that  they  shall  be  elected  by  contiguous 
territories,  one  from  each  district.  The  manner  in 
which  the  apportionment  is  to  be  made,  the  way  in 
which  districts  are  to  be  apportioned,  the  lines 
forming  such  districts,  are  all  left  to  the  legislative 
bodies  of  the  several  States.  The  apportionment 
act  of  1872,  which  is  the  last  apportionment  act  in 
force,  provides  the  Tuesday  after  the  first  Monday 
in  November  of  every  second  year  as  the  day  of 
election  in  all  the  States  and  Territories  for  rep- 
resentatives and  delegates  to  the  Congress  of  the 
fourth  day  of  March  next  thereafter.  The  time  for 
holding  elections  in  any  such  district  or  territory 
for  representative  or  delegate  to  fill  the  vacancy  is 
prescribed  by  the  laws  of  the  several  States  and 
Territories.  The  vote  for  representatives  is  re- 
quired under  the  provisions  of  Congress  to  be  by 


32  CONSTITUTIONAL    HISTORY. 

ballot.  The  compensation  of  members  of  Congress 
is  $7,500  a  year,  and  an  allowance  for  actual  travel- 
ing expenses. 

At  the  first  session  of  Congress  after  every 
general  election  of  representatives,  the  oath  of 
office  may  be  administered  by  any  member  of  the 
House  of  Representatives  to  the  Speaker,  and  by 
the  Speaker  to  all  the  members  and  delegates 
present,  and  to  the  Clerk,  previous  to  entering  on 
any  business,  and  to  members  and  delegates  as 
they  afterward  appear,  previous  to  their  taking 
their  seats.  Before  the  first  meeting  of  each  Con- 
gress the  Clerk  of  the  next  preceding  House  of 
Representatives  makes  the  roll  of  the  representa- 
tives elected,  placing  thereon  the  names  of  those 
persons  only  whose  credentials  show  that  they 
were  regularly  elected,  in  accordance  with  the  laws 
of  their  States,  respectively,  or  laws  of  the  United 
States.  The  Sergeant-at-arms  is  charged  with  the 
duties  of  the  Clerk  in  the  event  of  any  vacancy  in 
that  office,  in  the  event  of  the  disability  or  absence 
of  the  Clerk,  and  in  the  event  of  the  disability  or 
absence  of  both  Clerk  and  Sergeant-at-arms,  the 
Door-keeper  of  the  next  preceding  House  of 
Representatives  is  charged  with  this  duty.  In  the 
event  of  Congress  being  prevented,  by  a  contagious 
disease  or  the  existence  of  other  circumstances, 


THE   LEGISLATIVE   DEPARTMENT.  33 

making  it,  in  the  opinion  of  the  President,  hazard- 
ous to  the  lives  of  members  to  convene  at  the  seat 
of  government,  he  is  authorized  to  convene  them 
at  such  other  place  as  he  may  judge  proper. 

The  Senate  is  constituted  of  the  senators  elected 
by  the  Legislature  of  each  State.  The  election 
takes  place  on  the  second  Tuesday  after  the  meet- 
ing and  organization  of  the  Legislature  ;  and  if.  an 
election  fails  to  be  made  on  the  first  day,  at  least 
one  vote  is  required  to  be  taken  every  day  there- 
after, during  the  session  of  the  Legislature,  until 
a  senator  is  chosen.  An  existing  vacancy  is  filled 
in  the  same  manner  and  in  the  same  way,  and  if 
any  vacancy  occurs  during  the  session  it  is  filled 
by  election,  the  proceedings  for  which  are  to  be 
commenced  on  the  second  Tuesday  after  the  Legis- 
lature has  organized  and  has  notice  of  such 
vacancy.  The  number  of  senators  is  fixed  at  two 
from  fcach  State,  independent  and  irrespective  of 
the  size  of  the  State  or  the  number  of  its  in- 
habitants; so  that  there  are  several  instances  of 
States,  notably  Oregon  and  Delaware  and  Nevada, 
which  have  two  senators  and  but  one  representa- 
tive. 

No  person  can  be  a  senator  who  has  not  attained 
the  age  of  thirty  year§,  been  nine  years  a  citizen 

of    the   United   States,   and  who   shall  not  have 

2* 


34  CONSTITUTIONAL    HISTORY. 

been,  when  elected,  an  inhabitant  of  the  State 
from  which  he  shall  be  chosen. 

Senators  are  chosen  for  six  years.  They  are 
divided  into  three  classes,  one  class  being  chosen 
every  second  year.  If  vacancies  happen,  the  Exe- 
cutive of  a  State  may  make  a  temporary  appoint- 
ment until  the  next  meeting  of  the  Legislature. 

The  Yice-President  of  the  United  States  is  the 
President  of  the  Senate,  but  without  a  vote,  except 
in  cases  of  equal  division.  The  Senate  chooses  its 
other  officers  and  also  a  President  pro  tempore  in 
the  absence  of  the  Yice-President,  or  when  he  shall 
exercise  the  office  of  President. 

The  organization  of  the  Senate  is  provided  for  by 
the  act  of  June  1,  1789.  The  oath  of  office  is  ad- 
ministered by  the  President  of  the  Senate  to  the 
senators  elected  previous  to  his  taking  his  seat. 
When  a  President  of  the  Senate  has  not  taken  the 
oath  of  office,  it  is  administered  to  him  by  any 
member  of  the  Senate. 

Congress  is  the  law-making  power.  One  House 
contains  the  direct,  immediate  representatives  of 
the  people,  the  other  the  indirect  representatives 
of  the  people  ;  i.e.,  the  direct  representatives  of  the 
States.  Besides  being  part  of  the  law-making 
power,  the  Senate  shares  with  the  President  the 
power  of  appointment  to  office,  of  making  treaties 


THE   LEGISLATIVE   DEPARTMENT.  35 

of  peace  and  declarations  of  war.  Although  Con- 
gress cannot  be  said  to  be  superior  to  the  co- 
ordinate Judicial  and  Executive  departments  of 
the  Government,  it  nevertheless  has,  from  the 
nature  of  its  functions,  the  superior  power.  The 
history  of  the  United  States  since  1865  gives 
several  instances  of  the  manner  by  which  both  the 
Judicial  and  Executive  departments  of  the  United 
States  Government  may,  in  cases  of  conflict,  be 
coerced  to  a  considerable  degree  by  the  law-making 
power.  Notable  instances  of  this  coercion  are  the 
acts  of  Congress  interfering  with  the  Executive  dis- 
cretion of  President  Johnson  when  he  was  in  direct 
conflict  with  the  majority  of  both  Houses  of  Con- 
gress, and  his  subsequent  impeachment  and  all  but 
conviction  and  removal ;  and  the  increase  in  the 
number  of  the  judges  of  the  Supreme  Court  of  the 
United  States,  when  a  decision  had  been  rendered 
upon  a  quasi-political  subject — the  constitutionality 
of  the  Legal  Tender  act,  which  did  not  conform  to 
the  opinions  of  the  Executive  and  Legislative 
departments,  and  which  was,  therefore,  to  be*  re- 
argued  and  reversed,  an  increase  of  personnel  of 
the  court  of  last  resort  being  the  coercive  method 
found  effective  to  secure  such  a  result. 

Among   the  formalities   of    the   organization   of 
Congress,  not  heretofore  referred  to,  are  constitu- 


36  CONSTITUTIONAL    HISTORY. 

tional  provisions  to  the  effect  that  Congress  shall 
assemble  at  least  once  in  every  year,  and  that  the 
meeting  shall  commence  on  the  first  Monday  in 
December,  unless  by  law  a  different  day  be  ap- 
pointed. Each  House  is  made  the  judge  of  'the 
elections,  return,  and  qualifications  of  its  own 
members.  A  majority  is  constituted  a  quorum  for 
the  transaction  of  business,  but  power  is  given 
to  a  smaller  number  to  adjourn  from  day  to  day 
and  to  compel  the  attendance  of  absent  members. 
Congress  is  empowered  to  make  rules  for  its  own 
government,  and  each  House  makes  its  own  rules. 
The  expulsion  of  a  member  is  given  to  two-thirds 
of  either  House.  Neither  House  has  the  power 
during  the  session  to  adjourn,  without  the  consent 
of  the  other  House,  for  more  than  three  days,  nor 
to  any  other  place  than  the  one  appointed  by  law. 
No  senator  or  representative  is  permitted,  during 
the  term  for  which  he  is  elected,  to  be  appointed 
to  any  civil  office  under  the  authority  of  the  United 
States,  which  shall  have  been  created  or  the  emol- 
uments whereof  shall  have  been  increased  dur^ 
ing  such  term  of  service,  and  no  person  holding  any 
office  under  the  United  States  shall  be  a  member 
of  either  House  during  his  continuance  in  office. 

All  revenue  laws  must  originate  in  the  House  of- 
Representatives.     This   includes  all  appropriation 


THE   LEGISLATIVE  DEPARTMENT.  37 

bills,  but  the  Senate  is  permitted  to  propose  or 
concur  with  amendments  in  the  same  manner  as  on 
other  bills.  Power  is  given  to  Congress  to  levy 
and  collect  taxes,  duties,  imposts,  and  excises ;  to 
pay  the  debts,  and  provide  for  the  common  defense 
and  general  welfare  of  the  United  States ;  but  such 
duties,  imposts,  and  excises  must  be  uniform 
throughout  the  United  States.  We  have  already 
referred  to  the  fact  that  the  absence  of  such  a 
power  given  in  express  terms,  or  even  by  necessary 
implication,  and  the  absence  of  any  power  to 
enforce  a  system  of  taxation,  was  the  main  cause  of 
the  failure  of  the  United  States  to  form  a  stable 
government  under  the  Articles  of  Confederation. 

In  many  forms  has  the  question  of  the  consti- 
tutional exercise  of  this  power  been  before  the 
Supreme  Court  of  the  United  States.  The  result 
of  these  decisions  may  be  summed  up  as  follows : 
Congress  has  power  to  levy  such  taxes  and  imposts 
as  it  may  see  fit  for  public  purposes.  It  was 
claimed  that  customs  duties  levied  with  the  ulterior 
purpose  of  protecting  home  industry,  were  an  un- 
constitutional exercise  of  power  under  this  grant, 
for  the  reason  that  such  duties  are  not  levied*  with 
the  view  to  the  raising  of  revenue,  but,  on  the  con- 
trary, for  the  purpose  of  enabling  manufacturers 
within  the  United  States  to  increase  profits  on 


38  CONSTITUTIONAL    HISTORY. 

products  for  the  benefit  of  their  private  operations. 
It  was  held  by  the  Supreme  Court  of  the  United 
States,  that  if  any  revenue  whatever  was  raised 
from  this  source,  the  motive  could  not  be  inquired 
into,  and  that  the  indirect  benefit  to  classes  in  the 
community  of  this  mode  of  raising  revenue  was 
one  of  the  consequences  which  did  not  come  within 
judicial  cognizance  It  was  held,  however,  by  the 
Supreme  Court  of  the  United  States  in  the  case  of 
Loan  Association  against  Topeka,  20  Wallace,  655, 
that  where,  however,  the  tax  is  avowedly  laid  for  a 
private  purpose,  it  is  illegal  and  void.  In  this  case 
the  tax,  having  been  avowedly  laid  to  aid  a  private 
corporation  in  creating  a  manufacturing  establish- 
ment, was  held  to  be  an  illegal  exercise  of  the  tax- 
ing power.  This  case  has  been  followed  in  several 
of  the  States,  and  creates  a  line  of  cases  which  in 
time,  as  public  opinion  in  the  Unite'd  States  may 
be  ripened  and  educated  by  politico  economical 
studies,  may  lead  to  a  reversal  by  the  Supreme 
Court  of  the  United  States  of  its  opinion  that  taxa- 
tion for  incidental  protection  under  the  guise  of 
revenue  laws  is  a  constitutional  exercise  of  power. 
Thus  may  possibly  be  given  to  the  United  States 
the  full  benefit  of  free-trade  doctrines  through  an 
interpretation  by  the  Supreme  Court  of  the  United 
States,  namely,  that  all  customs  duties  must  be 


THE  LEGISLATIVE  DEPARTMENT.  39 

levied  for  purposes  of  revenue  only,  and  that  if  it 
appears  to  tlie  court  that  the  object  is  not  one  of 
revenue,  but  the  incidental  benefit  of  persons  or 
classes  in  the  community,  it  is  unequal  taxa- 
tion ;  is  a  burden  laid  not  for  purposes  of  govern- 
ment, but  for  private  purposes,  and  is,  therefore, 
unconstitutional  and  void. 

"Where  Congress  has  the  power  to  tax,  the  States 
are  inhibited  from  exercising  the  same  power, 
under  the  general  exposition  that  what  is  granted 
to  the  government  of  the  United  States  is  taken 
away  from  the  several  States  ;  and  when  Congress 
exempts  from  taxation  in  express  terms,  the  States 
are  ipso  facto  inhibited  from  imposing  taxation  upon 
the  same  commodity  or  asset.  For  instance,  the 
bonds  of  the  United  States  are,  by  the  contract  of 
the  bondholder  with  the  federal  government,  incor- 
porated into  the  law  creating  the  bonds,  exempted 
from  taxation.  Under  those  circumstances  it  would 
be  an  illegal  exercise  of  power  on  the  part  of  the 
States  or  municipalities  to  tax  such  bonds. 

In  a  recent  case  decided  by  the  Supreme  Court 
of  the  United  States  it  was  fully  recognized  that 
the  power  to  tax  involved  the  power  to  destroy. 
As  the  Union  and  the  State  governments  are  coor- 
dinate branches  of  the  polity  of  the  United  States, 
and  as  to  tax  the  State  governments  or  the  muni- 


40  CONSTITUTIONAL    HISTOEY. 

cipalities  created  thereunder,  would  involve  the 
power  to  destroy  the  States  or  such  muncipalities, 
Congress  is  by  the  very  nature  of  such  institutions 
inhibited  from  levying  any  such  tax.  Congress, 
therefore,  cannot  tax  the  salaries  of  State  officers, 
franchises  created  by  a  State,  municipal  corpora- 
tion, of  a  State,  processes  of  State  courts,  etc. 

Congress  is  empowered  to  borrow  money  on  the 
credit  of  the  United  States.  The  meaning  of  this 
clause  is  too  clear  to  require  judicial  interpretation, 
and  gives  constitutional  sanction  to  the  funded  debt 
of  the  United  States.  Congress  is  authorized  to 
regulate  commerce  with  foreign  nations,  and  among 
the  several  States,  and  with  the  Indian  tribes. 
This  power  to  regulate  commerce  with  foreign 
nations  involves,  of  course,  the  treaty-making 
power ;  to  make  such  arrangements  in  relation  to 
the  commerce,  resting  on  mutual  comity,  as  exi- 
gencies may  from  time  to  time  demand.  The  power 
to  regulate  commerce  between  the  several  States 
involves,  of  course,  the  power  to  regulate  commerce 
on  the  navigable  rivers  and  streams  which  run  be- 
tween the  several  States.  And  more  recently,  in 
consequence  of  the  growth  of  inter  state  traffic  and 
the  establishment  of  railways  which  run  through 
many  States,  and  of  telegraphic  lines  which  spread 
their  net- work  over  the  whole  of  the  domain  of  the 


THE  LEGISLATIVE  DEPABTMENT.  41 

United  States,  this  power  has  been  invoked  by  the 
people  of  the  United  States  as  a  means  of  assert- 
ing uniform  jurisdiction  over  corporate  franchises 
coextensive  in  their  exercise  with  the  United  States 
of  America,  although  chartered  under  the  several 
State  laws. 

The  question  of  railway  and  telegraph  monopoly 
has  in  recent  years  become  an  agitated  one  in  the 
United  States,  in  consequence  of  the  growth  of  those 
several  interests,  and  the  power  of  the  United  States 
to  regulate  such  industrial  enterprises,  acting  under 
State  corporate  franchises,  but  really  carrying  on 
inter-state  commerce,  has,  by  the  Supreme  Court 
of  the  United  States,  been  recognized  as  a  power 
vested  in  Congress ;  and  although  ordinarily  the 
safer  course  of  legislation  is  toward  decentraliza- 
tion of  power,  it  is  nevertheless  true  that  in  the 
case  of  industrial  enterprises  having  a  tendency  to 
centralization  within  the  area  of  the  vast  territory 
of  the  United  States,  the  uniform  power  to  regulate 
these  enterprises,  if  they  partake  in  the  least  of  a 
monopoly  character,  must  be  equally  coextensive 
with  the  territory  they  occupy.  As  the  several 
States  have  shown  themselves  powerless  to  deal 
with  the  subject  either  in  an  efficient  way  or  upon 
a  uniform  plan,  the  power  of  the  United  States,  now 
placed  beyond  question  by  the  decisions  of  the 


42  CONSTITUTIONAL    HISTORY. 

Supreme  Court  of  the  United  States,  to  regulate 
these  gigantic  industrial  enterprises  is  well  lodged 
in  the  United  States  Congress. 

Power  is  given  to  the  Congress  of  the  United 
States  to  establish  a  uniform  rule  of  naturalization 
and  uniform  laws  on  the  subject  of  bankruptcy 
throughout  the  United  States.  The  grant  of  this 
power  of  naturalization  has  been  followed  by 
national  legislation  from  time  to  time,  by  which 
persons  who  are  residents  of  the  United  States  for 
five  years  can  become  citizens  thereof  by  following 
certain  prescribed  forms  of  identification,  declara- 
tion of  intentions,  etc.  Exceptions  of  an  unim- 
portant character  are  made  in  cases  of  minors. 

The  bankruptcy  legislation  of  the  United  States 
has  been  extremely  spasmodic.  When  a  bank- 
ruptcy law  exists  the  States  are  prohibited,  by 
necessary  implication,  from  having  insolvency  laws 
in  conflict  with  the  bankruptcy  laws.  When  the 
bankruptcy  laws  are  repealed,  as  they  frequently 
have  been  and  as  is  the  case  at  present,  the  State 
insolvent  laws  once  more  come  into  force.  While 
the  federal  bankruptcy  laws  are  on  the  statute 
book  and  in  force,  all  State  insolvent  laws  are  for 
the  time  being  suspended. 

Congress  is  empowered  to  coin  money  and  to 
regulate  the  value  thereof  and  of  foreign  coin,  and 


THE  LEGISLATIVE  DEPARTMENT.  43 

fix  a  standard  of  weights  and  measures.  Under 
this  grant  of  power,  the  right  of  the  issue  of  the 
United  States  Treasury  notes  made  legal  tender  at 
the  beginning  of  the  Civil  War  was  seriously  con- 
tested. At  first  a  decision  was  had,  under  the  pre- 
siding justiceship  of  Mr.  Chase,  who  was  Secretary 
of  the  Treasury  when  such  notes  were  issued,  de- 
claring such  issue  to  be  in  contravention  of  the 
Constitution  of  the  United  States.  This  decision 
was  subsequently  reversed  by  a  court  which  had 
in  the  interim  become  enlarged,  and  it  was  held 
that  this  issue  of  legal  tender  notes,  made  during 
the  war,  though  not  justified  strictly  under  the 
power  granted,  was  the  exercise  of  a  war  power, 
and  was  naturally  limited  to  a  condition  either  of 
domestic  insurrection  or  foreign  invasion.  "While 
this  decision  stands,  there  is  no  cause  to  appre- 
hend that  under  the  power  to  coin  money  and  to 
regulate  its  value,  any  addition  will  be  made  to  the 
legal  tender  issue  of  the  United  States. 

Congress  is  empowered  to  provide  for  the  punish- 
ment of  counterfeiting  securities  and  current  coin 
of  the  United  States ;  to  establish  post-offices  and 
post  roads  ;  promote  the  progress  of  science  and 
useful  arts  by  securing  for  limited  times  to  authors 
and  inventors  the  exclusive  right  to  their  respective 
writings  and  discoveries.  Under  this  power  the 


44  CONSTITUTIONAL    HISTOKY. 

Patent  Office  was  organized,  and  patent,  trade  mark, 
and  copy-right  laws  passed,  securing  for  limited 
periods  of  time  the  rights  of  inventors  and  authors 
in  their  respective  inventions  and  books. 

Congress  is  empowered  also  to  constitute  tribu- 
nals inferior  to  the  Supreme  Court.  In  the  third 
article  creating  the  judicial  power  of  the  United 
States,  such  power  is  vested  in  the  Supreme  Court 
and  in  such  inferior  courts  as  Congress  may  from 
time  to  time  ordain  and  establish.  This  article 
further  provides  that  the  judges,  both  of  the 
Supreme  and  inferior  courts,  shall  hold  their  office 
during  good  behavior,  and  shall  at  stated  times 
receive  for  their  services  a  compensation  which  shall 
not  be  diminished  during  their  continuance  in 
office.  Under  these  two  several  sections  of  the 
Constitution  of  the  United  States,  Congress,  from 
1789  to  1876,  from  time  to  time,  passed  judiciary 
laws  under  which  district  courts  were  organized, 
which  give  to  each  State,  substantially,  one  district 
judge  (to  Pennsylvania,  however,  two,  to  New  York 
two,  to  Ohio  two,  to  Illinois  two),  and  circuit 
courts  of  nine  circuits  with  one  judge  for  each 
circuit.  The  judges  of  the  Supreme  Court  of  the 
United  States  when  not  sitting  in  bane  likewise  hold 
circuit  courts.  The  Judicial  department  of  the 
United  States  being  created  under  a  separate  article 


THE   LEGISLATIVE  DEPARTMENT.  45 

of  the  Constitution,  we  will  reserve  our  further 
examination  into  the  organization  of  these  courts 
and  their  jurisdiction  until  we  reach  that  head. 

Congress  has  exclusive  jurisdiction  in  defining 
and  punishing  felonies  committed  on  the  high 
seas,  and  offenses  against  the  law  of  nations ; 
to  declare  war,  and  grant  letters  of  marque 
and  reprisal,  and  to  make  rules  concerning 
captures  on  land  and  water  ;  to  raise  and  support 
armies,  but  no  appropriation  of  money  to  that  end 
shall  be  for  a  longer  term  than  two  years  ;  to  pro- 
vide and  maintain  a  navy ;  to  make  rules  for  the 
government  and  regulation  of  the  land  and  naval 
forces ;  to  provide  for  calling  forth  the  militia  for 
executing  the  laws  of  the  Union ;  to  .suppress  in- 
surrections and  repel  invasions ;  to  provide  for 
organizing  the  army  and  disciplining  the  militia, 
and  for  governing  such  part  of  them  as  may  be 
employed  in  the  service  of  the  United  States,  re- 
serving to  the  States  respectively  the  appointment 
of  the  officers  and  the  authority  of  training  the 
militia  according  to  the  discipline  prescribed  by 
Congress.  Under  the  power  to  make  rules  for  the 
government  of  the  land  and  naval  forces,  Congress 
has  not  the  power  to  make  any  rules  inconsistent 
with  the  position  of  the  President  of  the  United 
States  as  Commander-in-chief.  The  Constitution 


46  CONSTITUTIONAL    HISTOEY. 

appoints  him  the  first  officer  of  the  army,  and  the 
laws  of  war  give  to  the  first  officer  powers,  of  which, 
under  the  guise  of  rules  and  regulations,  he  cannot 
be  stripped.  The  manner  in  which  the  President 
makes  his  requisition  for  militia  is  by  a  call  upon 
the  Executive  of  a  State,  but  he  is  not  required  to 
recognize  the  chief  Executive  of  a  State;  he  can 
make  his  call  directly  upon  the  militia  officers. 
Although  the  States  have  the  power  to  appoint 
officers  for  the  militia,  they  are  all  outranked  by 
the  Commander-in-chief,  when  called  by  him  to 
the  service  of  the  United  States,  and  outranked  by 
any  general  or  other  officer  who  may  be  appointed 
over  them. 

The  object  had  in  view  that  no  appropriation  of 
money  for  army  purposes  shall  be  for  a  longer 
period  than  two  years,  is  obviously  that  no  Con- 
gress subservient  to  the  Executive  power  shall 
create  a  standing  army  to  be  placed  under  the  con- 
trol of  the  chief  Executive  of  the  Union  and  make 
one  perpetual  appropriation  therefor.  The  neces- 
sity to  ask  from  time  to  time  the  popular  consent 
for  army  appropriations  through  the  instrumen- 
tality of  Congress,  will,  it  is  supposed,  forever  pre- 
vent an  army  being  created  which  will  be  used  in 
a  manner  opposed  to  the  popular  will. 

Congress  has  power  to  exercise  exclusive  legisla- 


THE   LEGISLATIVE  DEPARTMENT.  47 

tion  in  all  cases  whatsoever  over  such  district,  not 
exceeding  ten  miles  square,  as  may,  by  a  cession 
of  particular  States  and  the  acceptance  of  Con- 
gress, become  the  seat  of  government  of  the  United 
States,  and  to  exercise  like  authority  over  all 
places  purchased  by  the  consent  of  the  Legisla- 
ture of  the  State  in  which  the  same  shall  be,  for 
the  erection  of  forts,  magazines,  arsenals,  dock- 
yards, and  other  needful  buildings.  Under  this 
section  of  the  Constitution  the  District  of  Columbia 
was  ceded  by  the  State  of  Maryland  to  the  United 
States  for  the  establishment  of  the  seat  of  govern- 
ment at  Washington  on  the  Potomac,  and  Congress 
has  exclusive  jurisdiction  over  the  government  in 
that  district.  It  provided  the  district  with  a  mu- 
nicipal administration,  which,  however,  in  conse- 
quence of  the  abuses  incident  thereto,  was  abol- 
ished, and  it  is  now  governed  directly  by  a 
committee  of  Congress. 

Crimes  committed  within  a  fort,  magazine,  ar- 
senal, or  dock-yard,  or  other  building  of  the  United 
States,  are  cognizable  only  in  the  United  States 
courts  within  their  respective  districts. 

Congress  is  empowered  to  declare  the  punish- 
ment of  treason,  but  no  attainder  of  treason  shall 
work  corruption  of  blood,  or  forfeiture,  except  dur- 
ing the  life  of  the  person  attainted. 


48  CONSTITUTIONAL    HISTORY. 

Congress  is  further  empowered  to  make  all  laws 
which,  shall  be  necessary  and  proper  for  carrying 
into  execution  the  foregoing  powers,  and  all  other 
powers  vested  by  the  Constitution  in  the  govern- 
ment of  the  United  States,  or  in  any  department  or 
officer  thereof. 

Although  under  this  general  grant  of  all  power 
necessary  to  carry  into  execution  the  powers  specif- 
ically enumerated,  no  new  power  has  been  granted, 
such  a  clause  was,  nevertheless,  necessary  for  the 
purpose  of  preventing  captious  objections  to  the 
exercise  of  power  by  necessary  implication  arising 
from  powers  already  granted,  simply  because  such 
powers  were  not  expressed  in  set  terms.  Under 
this  grant  of  implied  powers,  it  was  held  that 
Congress  could  charter  a  national  bank,  and  that 
it  could  make  appropriations  for  internal  improve- 
ments. Under  this  grant  of  implied  power,  it  was 
held  by  the  Supreme  Court  of  the  United  States 
that  Congress  might  organize  a  form  of  State  gov- 
ernment for  the  States  which  were  in  insurrec- 
tion, and  which  immediately  after  the  Civil  "War 
for  the  time  being  had  thereby  lost  their  frame- 
work of  government. 

Shortly  after  the  adoption  of  the  Constitution, 
by  reason  of  the  serious  controversy  which  was 
then  threatening  war  with  France,  the  so-called 


THE  LEGISLATIVE  DEPARTMENT.  49 

Alien  and  Sedition  laws  were  passed,  by  the  first 
of  which  the  President  of  the  United  States  was 
empowered  to  order  any  aliens  out  of  the  country 
whose  presence  was  supposed  to  be  dangerous  to 
the  community,  and  this  in  time  of  peace.  The 
Sedition  laws  made  it  a  crime  for  persons  unlaw- 
fully to  combine  or  conspire  together  with  the 
intent  to  oppose  any  measure  or  measures  of  the 
United  States,  etc.,  or  to  write,  print,  utter,  or 
publish,  or  cause  or  procure  to  be  written,  etc., 
any  false,  scandalous  and  malicious  articles  against 
the  government  of  the  United  States,  or  either 
House  of  Congress,  so  as  to  stir  up  sedition,  etc. 
These  laws,  although  upheld  by  the  judiciary,  were 
so  obnoxious  to  many  of  the  States  of  the  Union 
that  their  presence  upon  the  statute  book  resulted 
in  the  passage  of  resolutions  by  the  Legislatures 
of  several  States — Virginia  and  Kentucky — by 
which  they  nullified  such  laws  within  their  own 
States.  Bather  than  force  a  conflict  upon  this 
point,  the  laws  were  repealed. 

Under  the  ninth  section  of  the  first  article  of  the 
Constitution,  restricting  the  powers  of  Congress 
and  of  the  States,  it  is  provided  that  the  migra- 
tion or  importation  of  such  persons  as  any  of  the 
States  now  existing  shall  think  proper  to  admit, 
shall  not  .be  prohibited  by  Congress  prior  to  the 


50  CONSTITUTIONAL    HISTORY. 

year  1808,  but  a  tax  or  duty  may  be  imposed  on 
such  importation,  not  exceeding  ten  dollars  for  each 
person.  This  was  an  awkward  and  obscure  pro- 
vision, adopted  to  prohibit  Congress  from  prevent- 
ing the  importation  of  slaves  until  1808.  In  that 
respect  it  resembles  the  provision  requiring  the 
States  to  surrender  fugitives  who  were  held  to 
service  in  other  States.  The  framers  of  the  Con- 
stitution were  evidently  extremely  anxious  not  to 
use  the  term  slave  in  the  instrument,  and  so  in 
several  instances  resorted  to  a  paraphrase. 

Congress  was  forbidden  to  suspend  the  writ  of 
habeas  corpus,  except  when,  in  case  of  rebellion  or 
invasion,  the  public  safety  may  require  it.  It  has, 
however,  been  expressly  held  by  the  Supreme  Court 
of  the  United  States  that  the  power  to  suspend  the 
writ  of  habeas  corpus  exists  only  in  the  case  of 
war  or  insurrection  as  to  the  district  which  is  the 
theatre  of  war  or  insurrection,  and  not  where 
the  civil  tribunals  exercise  full  and  undisputed 
authority. 

Congress  is  forbidden  to  pass  any  bill  of  attainder 
or  ex  post  facto  law.  Although  there  is  secured  to 
each  man  accused  of  a  crime  the  right  to  be  con- 
fronted by  his  accusers,  and  to  a  trial  by  a  jury, 
which  would  seem  necessarily  to  forbid  the  passage 
of  any  bill  of  attainder,  yet,  to  place  the  rights 


THE  LEGISLATIVE  DEPARTMENT.  51 

of  the  people  beyond  doubt,  it  was  deemed  expe- 
dient to  put  in  express  terms  that  no  man  shall  be 
convicted  by  bill,  and  that  no  man  shall  be  con- 
victed of  a  criminal  offense  under  a  law  passed 
subsequent  to  the  committing  of  the  act.  Under 
this  prohibition  as  to  the  passage  of  ex  post  facto 
laws,  it  has,  however,  been  held  that  this  does  not 
forbid  Congress  from  passing  retroactive  laws  in 
civil  matters. 

No  capitation  or  other  direct  tax  is  permitted  to 
be  laid  unless  in  proportion  to  the  decennial  census 
or  enumeration.  No  tax  or  duty  shall  be  laid  on 
articles  exported  from  any  State.  Under  this  clause 
of  the  Constitution,  it  was  held  by  the  Supreme 
Court  of  the  United  States  that  the  export  duty 
on  cotton,  levied  after  the  close  of  the  Civil  War, 
was  unconstitutionally  levied. 

No  preference  is  permitted  to  be  given  by  any 
regulation  of  commerce  or  revenue  to  the  ports  of 
one  State  over  those  of  another ;  nor  are  vessels 
bound  to  or  from  one  State  obliged  to  enter,  clear, 
or  pay  duties  in  another.  No  money  is  permitted 
to  be  drawn  from  the  Treasury  except  in  conse- 
quence of  appropriations  made  by  law,  and  a  regular 
statement  of  account  of  the  receipts  and  expendi- 
tures of  all  public  money  is  required  to  be  published 
from  time  to  time. 


52  CONSTITUTIONAL   HISTORY. 

No  title  of  nobility  is  permitted  to  be  granted  by 
the  United  States,  and  no  person  holding  any  office 
of  profit  or  trust  under  its  laws  is  allowed,  with- 
out the  consent  of  Congress,  to  accept  any  present, 
emolument,  office,  or  title  of  any  kind  whatever 
from  any  king,  prince,  or  foreign  state.  No  State 
is  permitted  to  enter  into  any  treaty,  alliance,  or 
confederation ;  to  grant  letters  of  marque  or  re- 
prisal, coin  money  or  emit  bills  of  credit,  or  make 
anything  but  gold  and  silver  coin  a  tender  in  pay- 
ment of  debts ;  nor  to  pass  any  bill  of  attainder, 
ex  post  facto  law,  or  law  impairing  the  obligation 
of  contracts,  or  grant  any  title  of  nobility. 

Under  this  inhibition  upon  the  powers  of  the 
States,  the  question  which  has  been  most  fre- 
quently before  the  Supreme  Court  of  the  United 
States  for  interpretation  has  been,  "  What  is  a  law 
impairing  the  obligation  of  contracts,  and  what 
contracts  are  under  the  protection  of  the  Constitu- 
tion of  the  United  States  ?  "  While  it  is  true  that  no 
one  Legislature  can  tie  the  hands  of  a  subsequent 
Legislature  in  matters  strictly  governmental,  never- 
theless the  Legislature  of  a  State  may  pass  a  law 
which  constitutes  a  contract  with  individuals  or  cor- 
porations binding  upon  the  State.  Such  a  law  can- 
not be  subsequently  impaired,  changed  or  modified 
to  the  detriment  of  the  other  contracting  party 


THE  LEGISLATIVE  DEPARTMENT.  53 

•without  the  consent  of  such  contracting  party  or 
its  assigns.  Under  this  head  it  has  been  held  by 
the  Supreme  Court  of  the  United  States,  that  the 
State,  as  to  a  particular  property,  may  forever 
surrender  its  taxing  power.  In  a  leading  case, 
decided  as  early  as  1819,  known  as  the  Dartmouth 
College  case,  it  was  held  that  the  charter  granted 
by  a  State  to  a  college  was  a  contract  which  the 
Constitution  of  the  United  States  would  not  per- 
mit to  be  impaired. 

As  the  result  of  this  decision  restricting  the  powers 
of  States  to  alter  and  modify  franchises  granted  by 
them,  the  States  hastened  to  alter  their  respective 
Constitutions,  so  that  it  was  thenceforth  provided 
that  all  grants  to  corporations  and  all  charters  of 
corporations  were  subject  to  modification,  alteration, 
and  repeal  at  the  will  of  .the  Legislature.  This 
made  the  right  of  the  Legislature  to  alter,  modify, 
or  repeal  franchises  granted  to  corporations,  a  part 
of  the  contract  originally  entered  into  with  the 
corporation,  and  therefore  the  exercise  of  that 
right,  however  detrimental  to  the  interests  of  the 
corporation,  could  not  be  said  to  be  an  impairment 
of  the  obligation  of  the  contract  embodied  in  its 
charter  subsequently  enacted  to  such  constitutional 
amendment.  When  some  of  the  Western  States  of 
the  United  States  recently  enacted  laws  by  virtue 


54  CONSTITUTIONAL  HISTOEY. 

of  which  commissioners  were  appointed  to  regulate 
the  tariff  of  charges  for  freight  and  passengers  to 
be  charged  by  the  railway  corporations  which  had 
been  chartered  within  the  State,  it  was  argued 
before  the  Supreme  Court  of  the  United  States,  by 
the  bondholders  and  stockholders  of  the  corpora- 
tion, that  such  legislation  was  an  impairment  of 
the  original  contract  made  with  the  corporation, 
and  that  under  such  contract  the  bondholders  and 
stockholders  acquired  rights  which  could  not  be 
subsequently  destroyed  by  a  reassertion  of  sov-* 
ereign  power  on  the  part  of  the  State,  which  had 
been  impliedly  bargained  away.  In  those  States, 
however,  the  constitutions  provided  that  grants 
by  the  Legislature  of  corporate  franchises  were 
subject  to  modification  and  repeal,  and  the  Supreme 
Court  held  that  the  bond  and  stock  holders  were 
without  remedy.  It  has  also  been  held  that  the 
remedial  provisions  of  law  by  which  the  creditor 
could  collect  from  his  debtor  within  the  respective 
States  by  judgment  and  execution  a  claim  due  him, 
could  not  be  so  altered  as  substantially  to  impair 
his  rights  ;  that  the  remedial  legislation  of  the 
State  under  which  contracts  are  made  form  part  of 
the  contract,  and  that  to  alter  them  to  the  detri- 
ment of  the  creditor  was  an  impairment  of  his 
rights.  On  the  other  hand,  it  has  been  held  by  the 


THE   LEGISLATIVE  DEPABTMENT.  55 

Supreme  Court  of  the  United  States,  iii  construing 
this  provision  of  the  Constitution,  that  a  municipal 
corporation,  being  a  subordinate  branch  of  the 
sovereignty  of  the  State,  having  delegated  powers 
only,  is  subject  to  have  its  charter  modified,  altered 
or  repealed  at  the  will  of  the  Legislature,  and  that 
such  legislation  never  partakes  of  the  nature  of  a 
contract.  This  is  likewise  true  of  all  officers  of 
the  States  whose  salaries  are  fixed  by  the  State, 
and  whose  functions  are  prescribed  by  State  laws. 

It  has  also  been  held  that  a  State  cannot  by 
contract  bargain  away  the  essential  powers  of 
sovereignty.  The  State,  therefore,  cannot  deprive 
itself  of  the  right  to  appropriate  private  property 
to  public  use  under  the  power  of  eminent  domain. 

Even  exclusive  privileges  in  the  nature  of  legis- 
lative contracts  are  upheld.  If  the  State,  for 
instance,  grants  a  privilege  to  a  corporation  to 
build  a  bridge,  and  couples  such  grant  with  an 
agreement  not  to  charter  a  bridge  within  a  certain 
given  point,  the  State  is  held  to  such  a  contract 
after  the  bridge  is  built.  On  the  other  hand, 
whatever  may  appropriately  be  deemed  to  fall 
within  police  powers  cannot  be  contracted  away. 
A  man  who  buys  a  large  stock  of  liquors  under 
existing  laws  by  which  no  license  is  required, 
cannot  claim  as  against  the  State  that  his  contract 


56  CONSTITUTIONAL   HISTOEY. 

is  impaired  because  the  State  subsequently  either 
restricts  the  sale  or  imposes  conditions  upon  the 
business  in  which  he  is  engaged. 

No  State  is  permitted,  without  the  consent  of 
Congress,  to  lay  any  imposts  or  duties  on  imports 
or  exports  except  such  as  may  be  absolutely  neces- 
sary for  executing  its  inspection  laws,  and  the  net 
produce  of  all  duties  and  imposts  laid  by  any  State 
on  imports  or  exports  shall  be  for  the  use  of  the 
Treasury  of  the  United  States,  and  all  such  laws 
shall  be  subject  to  the  revision  and  control  of 
Congress. 

No  State  is  permitted,  without  the  consent  of 
Congress,  to  lay  any  duty  of  tonnage,  keep  troops 
or  ships  of  war  in  time  of  peace,  enter  into  any 
agreement  or  contract  with  another  £H;ate  or  with 
a  foreign  power,  or  to  engage  in  war  unless  actually 
invaded  or  in  such  imminent  danger  as  will  not 
admit  of  delay. 

Under  these  provisions  it  has  been  held  that  an 
emigrant  tax  imposed  by  State  law  upon  vessels 
entering  the  port  of  New  York,  of  one  dollar  per 
head,  collected  from  ships  which  brought  the 
emigrants,  and  the  purpose  and  object  of  the 
expenditure  of  which  head-money  was  undoubt- 
edly of  an  extremely  useful  character  to  both 
emigrants  and  ship  owners,  was  an  unconsti- 


THE  LEGISLATIVE   DEPABTMEISTT.  57 

tutional  impost.  The  Emigration  Commission, 
which  for  many  years  in  the  City  of  New  York 
performed  a  very  praiseworthy  function  in  protect- 
ing the  emigrants,  from  the  moment  of  their  land- 
ing until  their  departure  from  the  City  of  New 
York,  from  frauds  and  swindles  of  every  description 
which  had  theretofore  been  practiced  upon  them, 
providing  hospitable  accommodations  for  them, 
and  for  a  year  after  their  landing  exercising  some 
degree  of  guardianship  in  relation  to  their  affairs, 
had  its  usefulness,  after  thirty  years'  duration, 
suddenly  endangered  by  a  decision  of  the  Supreme 
Court  of  the  United  States  adverse  to  the  levy  of 
the  fund  which  supported  it. 

Full  faith  and  credit  is  required  to  be  given  in 
each  State, to  the  public  acts,  records,  and  judicial 
proceedings  of  every  other  State,  and  Congress  is 
required  by  general  laws  to  prescribe  the  manner 
in  which  such  acts,  records,  and  proceedings  shall 
be  proved,  and  the  effect  thereof.  Under  this 
section  exemplification  acts  exist  under  which  the 
acts  and  records  of  the  several  States  are  made 
evidence  in  the  courts  of  law  of  other  States. 

The  citizens  of  each  State  are,  under  the  Consti- 
tution, entitled  to  all  the  privileges  and  immunities 
of  citizens  in  the  several  States.  Under  this  clause 
special  license  laws,  by  which  citizens  of  one  State 


58  CONSTITUTIONAL   HISTOEY. 

were  prohibited  from  seeking  trade  in  other  States 
except  on  taking  out  licenses  which  were  not  re- 
quired to  be  taken  out  by  the  citizens  of  the  State, 
were  held  to  be  unconstitutional.  In  some  of  the 
courts  of  the  United  States,  however,  it  has  been 
held  that  by  the  term  citizens  of  each  State  who 
are  entitled  to  such  provisions  is  meant  natural 
citizens,  and  not  artificial  creations  like  corpora- 
tions, and  that,  therefore,  a  State  is  at  liberty  to 
impose  terms  upon  corporations  of  other  States 
as  a  condition  of  their  doing  business  therein 
which  they  do  not  impose  upon  their  own  corpora- 
tions. 

A  person  charged  in  any  State  with  treason, 
felony,  or  other  crime,  who  shall  flee  from  justice 
and  be  found  in  another  State,  shall,  on  demand 
of  the  Executive  authority  of  the  State  from 
which  he  fled,  be  delivered  up  to  be  removed  to 
the  State  having  jurisdiction  of  the  crime.  This 
creates  without  treaty  between  the  States  a  condi- 
tion of  extradition  by  which  all  criminals  are 
delivered  by  one  State  to  another,  so  that  such 
criminals  can  be  tried  within  the  State  where  the 
crime  has  been  committed. 

The  constitutional  provision  that  no  person 
held  to  service  or  labor  in  one  State  under  the 
laws  thereof,  escaping  into  another,  shall,  in  con- 


THE  LEGISLATIVE   DEPARTMENT.  59 

sequence  of  any  law  or  regulation  therein,  be  dis- 
charged from  such  service  or  labor,  but  shall  be 
delivered  up  on  claim  of  the  party  to  whom  such 
service  or  labor  may  be  due,  was  mainly  applicable 
to  a  condition  of  slavery,  now  happily  passed  away, 
when  negro  bondmen  escaped  from  the  Southern 
to  the  Northern  States,  and  is  now  useful  only  in 
cases  of  apprenticeship,  for  which  it  is  not  likely 
to  be  invoked. 

The  United  States  is  required  to  guarantee  to 
every  State  in  the  Union  a  republican  form  of 
government,  and  to  protect  each  of  them  against 
invasion,  and  on  application  of  the  Legislature,  or 
of  the  Executive  when  the  Legislature  cannot  be 
convened,  against  domestic  violence. 

The  provision  requiring  that  full  faith  and  credit 
shall  be  given  in  each  State  to  the  acts,  etc.,  of 
every  other  State  has  for  its  object  to  prevent  any 
such  weakening  of  the  bonds  of  the  Federal  Union 
as  might  follow  from  the  States  disregarding  what 
was  due  to  courtesy  and  comity  when  their  respect- 
ive proceedings  should  come  under  consideration, 
and  thus  opening  anew  the  controversies  and  ques- 
tions which,  in  the  jurisdiction  having  properly  and 
primarily  the  control  of  them,  had  once  been 
determined.  This  clause  relates  only  to  judgments 
in  civil  actions,  and  not  to  judgments  on  criminal 


60  CONSTITUTIONAL   HISTOEY. 

prosecutions.  In  the  latter  respect  the  relation  of 
the  States  to  each  other  is  wholly  unaffected  by  the 
Constitution. 

The  clause  giving  to  the  citizens  of  each  State  all 
the  privileges  and  immunities  of  citizens  in  the 
several  States,  was  not  intended  to  give  the  laws  in 
one  State  the  slightest  force  in  another  State.  It 
simply  secures  to  the  citizens  of  each  State  in  every 
other  State,  not  the  laws  or  peculiar  privileges 
which  they  may  be  entitled  to  in  their  own  State, 
but  such  protection  and  benefit  of  the  laws  of  every 
and  any  other  State  as  are  common  to  the  citizens 
thereof  in  virtue  of  their  being  citizens. 

Under  the  section  making  it  imperative  upon  the 
United  States  to  guarantee  to  every  State  in  the 
Union  a  republican  form  of  government,  a  ques- 
tion was  raised  by  the  friends  of  woman's  suffrage, 
before  the  Supreme  Court  of  the  United  States, 
whether  a  government  that  excluded  women  from 
the  suffrage  was  a  republic,  and  the  court  held 
that  it  was. 

When  the  senators  and  representatives  of  a  State 
are  admitted  to  the  council  of  the  Union,  the 
authority  of  the  government  under  which  they  are 
appointed,  as  well  as  its  republican  character,  is 
recognized  by  the  proper  constitutional  authority. 

Congress  has  power  to  dispose  of  and  make  all 


THE   LEGISLATIVE  DEPARTMENT.  61 

needful  rules  and  regulations  respecting  the  terri- 
tory or  other  property  belonging  to  the  United 
States.  Under  this  grant  of  power  it  has  been  held 
that  Congress  has  the  absolute  right  to  prescribe 
the  times,  the  conditions,  and  the  mode  of  trans- 
ferring the  public  domain,  or  any  part  of  it,  and  to 
designate  the  persons  to  whom  the  transfer  shall 
be  made ;  that  no  State  legislation  can  interfere 
with  this  right,  or  embarrass  this  exercise,  and  that 
no  State  law,  whether  by  limitation  or  otherwise, 
can  defeat  the  title  of  the  United  States  to  public 
lands  within  the  limits  of  the  State. 

By  the  sixth  article  of  the  Constitution,  it  is  pro- 
vided that  all  debts  contracted  and  engagements 
entered  into  before  the  adoption  of  the  Constitution 
shall  be  as  valid  against  the  United  States  under 
the  Constitution  as  under  the  Confederation. 

The  second  section  provides  that  the  Constitu- 
tion and  the  laws  of  the  United  States  which  shall 
be  made  in  pursuance  thereof,  and  all  treaties 
made,  or  which  shall  be  made,  under  the  authority 
of  the  United  States,  shall  be  the  supreme  law  of 
the  land,  and  the  judges  in  every  State  shall  be 
bound  thereby,  anything  in  the  constitution  or 
laws  of  any  State  to  the  contrary  notwithstanding. 
This  supremacy  gives  to  the  United  States  Govern- 
ment, as  contradistinguished  from  a  State  Govern- 


62  CONSTITUTIONAL   HISTORY. 

ment,  its  true  sovereignty.  Without  it  the  Union 
could  not  maintain  itself.  There  would  have  been 
a  constant  clashing  of  interests  and  of  laws,  and 
endless  interpretations  by  the  several  State  courts 
conflicting  with  each  other  as  to  the  meaning 
of  clauses  of  the  Constitution  of  the  United  States. 
The  declaration  of  supremacy  of  the  Constitution 
of  the  United  States  and  the  laws  thereunder, 
and  the  organization  of  the  Supreme  Court  of  the 
United  States  to  determine  all  questions  arising 
under  the  Constitution  of  the  United  States,  or 
under  a  United  States  law,  or  when  the  Constitution 
of  the  United  States,  or  the  United  States  statutes 
is  invoked,  or  is  called  into  question,  has  created 
a  homogeneity  of  decisions  and  interpretation 
which  gives  stability  to  and  respect  for  its  laws. 

A  treaty  is  regarded  as  equivalent  to  an  act  of 
Congress,  and  has  precisely  the  same  validity. 
Congress  has,  therefore,  the  power  by  a  subse- 
quent law  to  repeal  clauses  in  a  treaty  if  the  sub- 
sequent enactments  are  in  necessary  conflict  with 
the  treaty.  It  is  only  the  foreign  governments, 
the  compact  with  which  has  been  violated,  which 
has  a  ground  of  complaint  for  an  infraction  of  the 
treaty,  not  the  citizens  of  the  United  States. 

Although  the  Constitution  thus  places  the  United 
States  government  and  its  legislation  above  that 


THE   LEGISLATIVE   DEPARTMENT.  63 

of  States,  it  nevertheless  takes  from  the  States  but 
three  cases  in  which  they  have  no  power  to  legis- 
late. First,  where  they  are  expressly  prohibited 
from  legislation ;  second,  where  exclusive  power  is 
expressly  vested  in  the  United  States  ;  and  third, 
where  power  vested  in  the  United  States  is  in  its 
nature  exclusive. 

It  has  now  been  expressly  held  by  the  Supreme 
Court  of  the  United  States,  that  when  a  State  be- 
comes one  of  the  United  States,  she  enters  into  an 
indissoluble  relation.  The  act  which  consummates 
her  admission  into  the  Union  is  something  more 
than  a  compact ;  it  is  the  incorporation  of  a  new 
member  into  the  political  body ;  it  is  final.  The 
union  is  as  complete,  as  perpetual,  and  as  indis- 
soluble as  the  union  between  the  original  States. 

The  senators  and  representatives,  and  the 
members  of  the  several  State  Legislatures,  and  all 
Executive  and  Judicial  officers  both  of  the  United 
States  and  of  the  several  States,  are  required  by 
the  Constitution  to  be  bound  by  an  oath  or  affirma- 
tion to  support  the  Constitution  ;  but  no  religious 
test  is  ever  required  as  a  qualification  for  any 
office  or  public  trust  under  the  United  States. 
Shortly  after  the  war  of  the  rebellion  a  new  oath 
was  prescribed  by  Congress  to  all  office-holders, 
known  as  the  "  iron-clad "  oath,  by  which  the 


64  CONSTITUTIONAL   HISTOEY. 

officer  swore  that  lie  had  not  aided  or  abetted  the 
rebellion  in  any  form  or  manner,  and  abjured  the 
heresy  of  secession.  This  oath  was,  after  solemn 
argument,  declared  to  be  an  unconstitutional  im- 
position as  a  test  for  office,  as  the  Constitution 
required  nothing  further  than  an  oath  to  support 
the  Constitution. 

Shortly  after  the  adoption  of  the  Constitution  a 
series  of  amendments  were  proposed,  and  by  the 
States  in  due  form  ratified,  which  limited  the 
powers  of  Congress,  and  the  first  eleven  of  which 
were  in  their  nature  a  sort  of  Declaration  of  Rights 
of  the  people  against  arbitrary  interference  by  the 
federal  authority,  and  have  hereinbefore  been  com- 
mented upon. 


CHAPTER  HI. 

THE  EXECUTIVE   POWER. 

THE  Executive  power  of  the  Federal  Government 
under  the  Constitution  of  the  United  States  is 
vested  in  a  President,  who  is  to  hold  his  office  for 
the  period  of  four  years,  and  who,  together  with 
the  Vice-President  chosen  for  the  same  term,  is 
elected  by  an  Electoral  College  composed  of  electors 
of  each  State  equal  to  the  whole  number  of  senators 
and  representatives  to  which  the  State  is  at  the  time 
of  such  election  entitled  in  Congress.  The  manner 
of  the  election  of  the  members  of  the  Electoral 
College  is  determinable  by  the  Legislatures  of  the 
several  States,  with  the  limitation  only  that  no 
senator  or  representative,  or  person  holding  an 
office  of  trust  or  profit  under  the  United  States, 
shall  be  appointed  an  elector.  Under  the  Consti- 
tution, Congress  was  vested  with  power  to  deter- 
mine the  time  of  choosing  the  electors  and  the  day 
on  which  they  shall  give  their  votes ;  such  day, 

however,  to  be  the  same  throughout  the  United 

-  65 


66  coisrsTiTUTioisrAL  HISTORY. 

States.  By  an  amendment  to  the  Constitution, 
adopted  in  September,  1804,  these  electors  were 
constituted  into  electoral  colleges,  to  meet  not  as 
one  body,  but  in  their  respective  States,  and  to  vote 
by  ballot  for  President  and  Vice-President,  one  of 
whom  at  least  shall  not  be  an  inhabitant  of  the 
same  State  with  themselves.  The  ballots  for  Pres- 
ident shall  be  separate  from  those  for  Vice-Pres- 
ident, and  after  having  made  distinct  lists  of  all 
persons  voted  for  as  President  and  of  all  persons 
voted  for  as  Vice-President,  and  of  the  numbers  of 
votes  for  each,  the  lists  are  required  to  be  signed 
and  certified  and  transmitted  sealed  to  the  seat  of 
government  of  the  United  States,  directed  to  the 
President  of  the  Senate.  The  President  of  the 
Senate  then  shall,  in  the  presence  of  the  Senate 
and  House  of  Representatives,  open  all  the  certi- 
ficates, and  the  votes  shall  then  be  counted.  The 
person  having  the  greatest  number  of  votes  for 
President  shall  be  President,  if  such  number  be  a 
majority  of  the  whole  number  of  electors  appointed. 
If  no  person  have  such  majority,  then  from  the 
persons  having  the  highest  number  of  votes,  not 
exceeding  three,  on  the  list  thus  voted  for  as  Presi- 
dent, the  House  of  Representatives  shall  immedi- 
ately choose  by  ballot  the  President.  When  that 
contingency  arises  the  members  of  the  House  of 


THE   EXECUTIVE   POWEK.  67 

Representatives  cease  to  vote  in  their  individual 
capacity,  but  vote  by  States,  each  delegation  or  a 
majority  of  each  delegation,  casting  the  vote  of  the 
State.  For  this  purpose  tho  quorum  to  constitute 
the  House  of  Representatives  must  consist  of  a 
member  or  members  from  two-thirds  of  the  States, 
and  a  majority  of  all  the  States  is  necessary  to  a 
choice. 

In  the  event  of  the  House  of  Representatives 
failing  to  choose  a  President,  when  the  right  of 
choice  thus  devolves  upon  them,  before  the  fourth 
day  of  March  next  following  the  election,  then  the 
Vice-President  shall  act  as  President,  as  in  case 
of  the  death  or  other  constitutional  disability  of 
the  President. 

The  person  having  the  greatest  number  of  votes 
as  Vice-President  shall  be  the  Vice-President,  if 
such  number  be  a  majority  of  the  whole  number  of 
electors.  If  no  person  has  a  majority,  then  from 
the  two  highest  numbers  on  the  list  the  Senate 
shall  choose  the  Vice-President.  A  quorum  for 
this  purpose  shall  consist  of  two-thirds  of  the 
whole  number  of  senators,  and  a  majority  of  the 
whole  number  shall  be  necessary  to  a  choice.  No 
person  is  eligible  for  the  position  of  President 
unless  he  be  a  natural-born  citizen  or  a  citizen  of 
the  United  States  at  the  time  of  the  adoption  of 


68  CONSTITUTIONAL   HISTORY. 

the  Constitution.  He  must  be  at  least  thirty-five 
years  of  age,  and  have  been  fourteen  years  a  resi- 
dent within  the  United  States. 

The  difference  between  the  amendment  and  the 
Constitution  as  it  originally  stood,  lies  mainly  in 
the  fact  that  under  the  original  Constitution  the 
electors  voted  by  ballot  for  two  persons,  and  that 
they  made  a  list  of  all  the  persons  voted  for  and  the 
number  of  votes  for  each,  and  the  person  having 
the  highest  number  of  votes,  if  such  number  was  a 
majority  of  the  whole  number,  became  the  Presi- 
dent, and  the  next  person  having  the  highest 
number  of  votes  became  the  Vice-President.  The 
idea  which  the  framers  of  the  Constitution  enter- 
tained as  to  the  manner  in  which  these  electoral 
colleges  should  exercise  their  function  was  that 
the  people  of  each  State  would,  in  such  manner  as 
the  Legislature  directed,  select  the  wisest  and  best 
men  in  the  State  to  determine  upon  the  fittest  and 
best  citizens  for  the  offices  of  President  and  Vice- 
President  respectively.  Alexander  Hamilton  says 
in  the  Federalist,  "  It  was  desirable  that  the  sense 
of  the  people  should  operate  in  the  choice  of  the 
persons  to  whom  so  important  a  trust  was  to  be 
confided.  This  end  will  be  answered  by  commit- 
ting the  right  of  making  it  not  to  any  preestab- 
lished  body,  but  to  men  chosen  by  the  people  for 


THE  EXECUTIVE   POWER.  69 

the  special  purpose  at  a  particular  juncture.  It 
was  equally  desirable  that  the  immediate  election 
should  be  made  by  men  most  capable  of  analyzing 
qualities  adapted  to  the  station.  ...  A  small 
number  of  persons  selected  by  their  fellow-citizens 
from  the  general  mass  would  be  most  likely  to 
possess  the  information  and  discernment  necessary 
for  so  complicated  an  investigation." 

The  end  which  was  intended  to  be  achieved  by 
the  non-merger  of  the  State  electors  in  any  general 
body,  was  to  preserve  State  action  to  such  a  degree 
as  to  prevent  State  jealousy  in  the  selection  of  the 
President,  so  that  each  State  should  feel  that  in 
the  performance  of  so  important  a  task  as  the 
selection  of  a  President  of  the  United  States  it  pre- 
served its  separate  action  ;  secondly,  by  this  sys- 
tem of  double  election  to  secure  the  best  possible 
result  as  to  persons  to  fill  the  important  offices  of 
President  and  Vice-President. 

At  a  very  early  period  after  the  adoption  of  the 
Constitution  the  practical  result  of  this  method  of 
selection  was  the  very  opposite  from  that  which 
was  intended  by  the  framers  of  that  instrument. 
National  conventions  of  parties  predetermined 
who  the  nominees  of  the  party  should  be  for  such 
offices,  and  the  election  of  electors  under  the  forms 
of  the  Constitution  at  a  subsequent  period  was 


70  CONSTITUTIONAL   HISTORY. 

merely  a  method  whereby  to  test  the  party  strength 
in  the  several  States ;  the  electors  to  be  voted  for 
•were  likewise  to  be  determined  by  a  party  conven- 
tion within  the  State  ;  and  the  majority  in  any 
State  would  elect  either  Federal  or  Republican 
electors,  subsequently  "Whig  or  Democratic,  and 
at  a  still  later  period  Republican  or  Democratic 
electors,  by  a  majority  vote  which  determined 
which  party  should  prevail  in  each  particular 
State.  The  electors  so  elected  became  and  are 
mere  registering  machines  to  cast  the  vote  of  the 
party  in  conformity  with  the  nomination  of  the 
party ;  and  so  strong  are  party  ties  in  the  United 
States,  that  there  is  no  instance  of  any  elector  so 
elected  disregarding  his  obligation  to  his  party 
and  exercising  an  independent  choice  for  President 
of  the  United  States.  Therefore,  after  the  Novem- 
ber election  preceding  the  March  when  the  Presi- 
dent of  the  United  States  is  to  be  inaugurated,  and 
considerably  preceding  the  period  of  the  meeting 
of  the  electoral  colleges,  the  selection  of  electors 
is  deemed  the  conclusion  of  the  contest,  and  when 
such  electors  are  elected,  who  is  to  become  the 
President  and  Vice-President  of  the  United  States 
is  immediately  thereupon  declared  and  known. 
The  subsequent  meeting  of  the  electoral  colleges 
on  the  first  Wednesday  in  December  following  the 


THE   EXECUTIVE   POWEE.  71 

Tuesday  after  the  first  Monday  of  November, 
when  the  election  takes  place,  has  degenerated 
into  a  mere  matter  of  form,  to  which  nobody  pays 
anything  more  than  a  mere  passing  attention.  The 
Eevised  Statutes  of  the  United  States,  sections  132- 
151,  provide  a  uniform  time  for  the  choice  of  the 
electors,  their  number,  the  manner  for  filling  vacan- 
cies, the  certificates  for  the  electors,  the  manner 
of  making  their  returns,  their  compensation,  a 
provision  for  the  contingency  of  a  new  election  in 
the  event  of  the  Presidency  and  Yice-Presidency 
both  becoming  vacant,  and  a  provision  that,  in  the 
event  of  the  resignation  of  the  President  or  Vice- 
President,  it  shall  be  in  writing. 

The  manner  of  counting  the  electoral  vote  has 
thus  far  been  determined  by  joint  resolution  of 
the  House  of  Representatives  and  the  Senate. 

Immediately  after  the  election  of  1876,  a  contro- 
versy arose  as  to  whether  Mr.  Tilden  or  Mr.  Hayes 
had  a  clear  majority  of  the  electoral  vote,  and 
when  the  electoral  colleges  subsequently  met  in 
their  respective  States,  two  returns  came  from 
several  States,  and  by  the  counting  of  either  one 
of  those  electoral  returns,  or  the  rejection  of  both, 
the  result  of  the  election  would  be  changed.  The 
country  was  considerably  disturbed  by  the  then 
condition  of  affairs ;  grave  suspicions  were  enter- 


72  CONSTITUTIONAL  HISTOEY. 

tained  that  fraudulent  electoral  colleges  were  con- 
stituted by  violently  disregarding  or  rejecting  votes 
which  should  properly  have  been  registered  for 
the  successful  candidate,  and  the  country  was  sup- 
posed by  many  to  be  upon  the  eve  of  another  civil 
strife  as  to  the  Presidential  succession,  when  an 
extra-judicial  tribunal  was  organized,  known  as  the 
Electoral  Commission,  composed  of  five  Judges  of 
the  Supreme  Court  of  the  United  States,  five  mem- 
bers of  the  House,  and  five   Senators,  from  both 
parties,  fifteen  in  all,  whose  determination  upon  the 
question  was  accepted  as  final.    It  is  well  known,  that 
by  a  majority  of  one  vote  Mr.  Hayes  was  declared 
elected,  and  duly  inaugurated.     This  condition  of 
affairs  is  unlikely  ever  to  happen  again,  because  the 
semi-territorial  government  to  which  some  of  the 
States  which   theretofore    had   been   in   rebellion 
were  subjected,   created  a  condition  of  affairs  in 
such  States  favorable  to  frauds  in  election  returns, 
and  which  made  it  doubtful  for  a  time   whether 
the  nominal  State  government  was  really  represent- 
ative of  the  people  of  the  State,  and  the  acts  of 
the  government  officials  were  regarded  with  grave 
suspicion  by  both  parties. 

The  Eevised  Statutes  also  provide  that  the  time 
for  which  a  President  and  Yice- President  shall  be 
elected  shall  in  all  cases  commence  on  the  fourth 


THE   EXECUTIVE   POWEK.  73 

day  of  March  next  succeeding  the  day  on  which 
the  votes  of  the  electors  have  been  given,  and  that 
that  term  shall  be  four  years ;  that  the  compensa- 
tion of  the  President  shall  be  $50,000  a  year,  and 
that  of  the  Vice-President  $10,000 ;  the  increase  of 
the  President's  salary  from  the  amount  originally 
fixed  by  the  act  of  1793  at  $25,000,  having  been 
made  in  March  1873.  It  also  contains  a  provision 
authorizing  the  appointment,  and  limits  the  expen- 
diture of  the  President's  official  household. 

The  functions  of  the  President,  as  defined  in  the 
second  article  of  the  Constitution,  make  him  Com- 
mander-in-chief of  the  army  and  navy  of  the 
United  States,  and  of  the  militia  of  the  several 
States  when  called  into  the  actual  service  of  the 
United  States  ;  give  him  power  to  grant  reprieves 
and  pardons  for  offenses  against  the  United  States 
except  in  cases  of  impeachment  only,  and  authorize 
him  to  require  the  opinion  in  writing  of  the  prin- 
cipal officers  in  each  of  the  Executive  departments 
upon  any  subject  relating  to  the  duties  of  their 
respective  offices.  Power  is  given  him,  by  and 
with  the  advice  and  consent  of  the  Senate,  to  make 
treaties,  provided  two-thirds  of  the  senators  con- 
cur ;  with  him  rests  the  nomination,  and  by  and 
with  the  advice  and  consent  of  the  Senate,  the 

appointment  of  all  ambassadors,  all  public  minis- 
4 


74  CONSTITUTIONAL  HISTOKY. 

ters  and  consuls.  He  also  appoints  the  Judges 
of  the  Supreme  Court,  and  all  other  officers  of  the 
United  States  the  appointment  of  which  is  not 
otherwise  provided  for  in  the  Constitution,  and 
which  may  subsequently  be  established  by  law. 
Power  is,  however,  reserved  to  Congress  by  law  to 
vest  the  appointment  of  such  inferior  officers  as 
they  may  think  proper  in  the  President  alone,  in 
the  courts  of  law,  or  in  the  heads  of  departments. 
The  President  is  also  empowered  to  fill  all  vacan- 
cies that  may  happen  during  the  recess  of  the 
Senate,  by  granting  commissions  which  shall 
expire  at  the  end  of  the  next  session.  He  is  re- 
quired from  time  to  time  to  give  to  Congress  infor- 
mation of  the  state  of  the  Union  and  to  recom- 
mend to  their  consideration  such  measures  as  he 
shall  judge  necessary  and  expedient,  and  he  may 
on  extraordinary  occasions  convene  both  Houses, 
or  either  of  them,  and  in  case  of  disagreement 
between  them  as  to  the  time  of  adjournment  he 
may  adjourn  them  to  such  time  as  he  may  think 
proper.  The  President  receives  ambassadors,  dip- 
lomatic agents  and  other  public  ministers,  and  is  in 
general  terms  entrusted  with  the  duty  to  see  that 
the  laws  are  faithfully  executed  and  to  grant  com- 
missions to  all  the  officers  of  the  United  States. 
Provision  is  made  for  the  removal  of  both  the 


THE   EXECUTIVE   POWER.  75 

President  and  Vice-President  and  all  civil  officers 
of  the  United  States  on  impeachment  for  and  con- 
viction of  treason,  bribery,  or  other  high  crimes 
and  misdemeanors.  He  has  also  the  high  and  im- 
portant prerogative  to  veto  all  legislation  of  Con- 
gress, which  veto  power  is,  however,  subjected  to 
the  condition  that  in  the  event  of  his  failure  to 
approve  a  bill  he  shall  return  it  with  his  objection 
to  the  House  in  which  it  shall  have  originated, 
which  shall  enter  the  objection  at  large  upon  its 
journal  and  proceed  to  reconsider  the  bill.  If, 
after  such  reconsideration,  two-thirds  of  the  House 
shall  agree  to  pass  the  bill,  it  shall  be  sent,  together 
with  the  objections,  to  the  other  House,  by  which 
it  shall  likewise  be  reconsidered,  and  if  approved 
by  two-thirds  of  that  House  it  shall  become  a  law 
notwithstanding  the  Presidential  veto.  In  all  such 
cases  the  votes  of  the  Houses  are  determined  by 
yeas  and  nays,  and  the  names  of  the  persons  voting 
for  and  against  the  bill  are  entered  upon  the 
journal  of  each  House.  Should  the  President  fail 
to  return  the  bill,  or  fail  to  sign  it  within  ten  days 
after  it  shall  have  been  presented  to  him,  it  be- 
comes a  law  as  though  he  had  signed  it,  unless 
Congress  by  adjournment  prevents  its  return,  in 
which  case  it  does  not  become  a  law  without  the 
President's  signature. 


76  CONSTITUTIONAL    HISTOEY. 

The  power  to  make  appointments  to  office  by 
and  with  the  advice  and  consent  of  the  Senate  has, 
in  practice,  also  largely  deviated  from  the  inten- 
tions of  the  draftsmen  of  the  Constitution.  By 
giving  the  President  this  power,  it  was  intended  to 
place  upon  him  the  responsibility  of  the  nomina- 
tion, and  to  give  the  Senate  the  power  to  consider 
the  fitness  of  the  nomination  by  a  canvass  of  the 
merits  of  the  nominee,  so  as  to  act  as  a  check  upon 
the  President's  personal  favoritism,  nepotism, 
lack  of  information,  or  any  other  influence  result- 
ing in  an  injudicious  nomination.  When,  however, 
by  the  growth  of  the  population  and  the  enor- 
mous increase  of  federal  offices  consequent  upon 
such  growth,  it  became  practically  impossible  for  the 
President  to  arrive  at  a  judicious  conclusion  as  to 
the  vast  number  of  appointments  which  had  to 
be  made  with  each  change  of  administration,  under 
the  pernicious  doctrine  that  the  prevailing  party 
had  a  right  to  all  the  federal  offices,  a  habit 
at  first  grew  up  of  asking  the  advice  of  the  sen- 
ators of  the  States  in  which  the  officers  were  to 
exercise  their  functions  as  to  the  proper  nominee  ; 
and  this  habit  in  time  grew  into  a  custom,  which 
gave  to  the  senators,  as  they  supposed,  the  right 
to  suggest  to  the  President  the  names  of  the 
persons  who  were  to  exercise  federal  functions 


THE   EXECUTIVE  POWER.  77 

within  the  State  from  which  they  were  commis- 
sioned. This  became  so  established  a  rule  of 
action  on  the  part  of  the  Presidents  that,  during 
President  Garfield's  administration,  the  two  sena- 
tors from  New  York  resigned  their  seats  in  1881, 
because  what  they  termed  "  the  courtesy  of  the 
Senate  " — a  euphonious  name  which  was  given  to 
this  abuse  which  had  arisen  under  the  Constitu- 
tion— had  been  disregarded  in  their  cases,  and  the 
Collector  of  the  Port  of  New  York  had  been 
appointed  by  the  President  without  consultation 
with  them,  and  in  disregard  of  their  wishes.  An 
active  movement  is  now  proceeding  in  the  United 
States  to  institute  some  system  of  civil  service  re- 
form which  will  relieve  the  President  from  the  neces- 
sity of  making  nominations  to  the  Senate  of  a  vast 
number  of  officers  which  are  periodically  to  be 
appointed  under  the  "  spoils  "  system,  and  which, 
from  the  neccessities  of  4he  situation,  com- 
pels the  nominations  of  inefficient  men  by  the 
President  if  he  acts  entirely  upon  his  own  judg- 
ment, in  disregard  and  without  consultation  with 
the  senators  from  all  the  States  in  advance  of  the 
nomination,  because  it  is  impossible  for  him  to 
know  much  of  the  persons  thus  to  be  nominated, 
or  places  him  entirely  in  the  hands  of  the  senators 
of  the  several  States  for  suggestion  and  advice  as 


78  CONSTITUTIONAL    HISTOEY. 

to  the  nominations,  and  thus  constitutes  the  sena- 
tors the  heads  of  the  great  political  machines  of 
the  States,  and  who  are,  instead  of  the  President, 
the  fountains  of  federal  honor  and  office  within 
their  respective  States.  The  civil  service  reform 
movement,  therefore,  in  the  United  States  will,  if 
successful,  deal  a  blow  at  the  "  spoils  "  system, 
which  makes  each  Presidential  election  a  raffle 
for  one  hundred  thousand  offices,  and  the  in- 
cumbents a  vast,  hungry  horde  of  office-holders, 
upon  whom  assessments  for  campaign  funds  can  be 
levied  by  the  party  in  power,  which  are  promptly 
paid,  because  the  incumbents  know  full  well  that 
in  the  event  of  a  change  of  administration,  par- 
ticularly if  that  change  of  administration  brings 
into  power  the  opposition  party,  their  offices  must 
be  vacated.  This  movement  is  also  an  attack  upon 
the  "  courtesy  of  the  Senate,"  which  constitutes 
senators,  instead  of  mere  judges  of  proper  or  im- 
proper nominations,  a  cabal  or  junta  to  dictate  nomi- 
nations to  the  President,  and,  in  the  event  of  the 
failure  of  the  President  to  accept  such  dictation,  to 
decline  confirmation,  irrespective  of  the  merits  of 
the  nominees. 

Each  term  of  the  Presidental  office  begins  on  the 
fourth  day  of  March  succeeding  the  election,  and 
continues  for  a  period  of  four  years.  The  people  of 


THE   EXECUTIVE  POWER.  79 

the  United  States  are  at  liberty  to  reelect  the  in- 
cumbent if  they  see  fit :  there  is  no  constitutional 
inhibition  upon  them  in  regard  to  the  number 
of  times  he  may  be  reflected.  But  as  "Wash- 
ington declined  a  nomination  after  his  second 
term  had  expired,  and  pointed  out,  in  so  declining, 
the  impropriety  of  repeated  elections  of  the  same 
officer,  however  popular,  it  has  become  part  of 
the  unwritten  law  of  the  United  States  that  the 
Presidential  term  shall  not  be  extended  beyond 
eight  years. 

In  case  of  the  removal  of  the  President  from 
office,  or  of  his  death,  resignation  or  inability  to 
discharge  its  powers  and  duties,  it  is  provided  that 
the  same  shall  devolve  upon  the  Vice-President. 
And  it  is  further  provided  that  Congress  may 
by  law  provide  for  the  case  of  the  removal, 
death,  resignation  or  inability  of  both  Presi- 
dent and  Y ice-President,  and  declare  what  officer 
shall  then  act  as  President,  and  such  officer 
shall  act  accordingly  until  the  disability  be  re- 
moved or  a  President  be  elected.  Congress  did 
provide,  that  in  such  a  case  the  President  of 
the  Senate,  or,  if  there  be  none,  the  Speaker 
of  the  House  of  Eepresentatives  for  the  time 
being,  shall  act  as  President  until  the  disability  is 
removed  or  a  President  elected  ;  and  in  the  event 


80  CONSTITUTIONAL    HISTORY. 

of  both  the  office  of  President  and  Vice-President 
becoming  vacant,  the  Secretary  of  State  shall 
thereupon  cause  a  notification  to  be  made  to  the 
Executive  of  every  State,  and  a  new  election  shall 
thereupon  be  ordered. 

There  is  no  provision  for  succession,  in  the  event 
of  there  being  no  President  of  the  Senata  and  no 
Speaker  of  the  House  of  Representatives.  The 
death  of  President  Garfield,  at  a  time  when  there 
was  neither  President  of  the  Senate  nor  Speaker 
of  the  House  of  Representatives,  created  a  case 
when,  in  the  event  of  the  death  of  President 
Arthur  before  the  Senate  could  be  convened,  no 
succession  for  the  Presidency  had  been  provided 
for.  It  is  therefore  clear  that  a  further  pro- 
vision must  be  made  by  law  for  such  a  possible 
contingency. 

Another  question  which  arose  during  the  pro- 
longed disability  of  President  Garfield,  inter- 
mediate between  his  wounding  and  his  death, 
is  one  which  has  never  yet  received  complete 
and  satisfactory  solution,  and  may  create  trouble 
unless  anticipated  by  law.  The  Constitution 
provides  that,  in  the  event  of  a  President- 
ial disability,  the  office  of  President  shall 
devolve  upon  the  Yice-President ;  but  there  is 
no  provision  that  such  a  devolution  of  the  office 


THE   EXECUTIVE   POWER.  81 

shall  be  simply  temporary  in  character,  and  that 
the  Vice-President  shall  resign  the  same  when 
the  disability  ceases  to  exist.  The  great  per- 
sonal popularity  of  President  Garfield,  the  hope 
of  speedy  recovery  from  his  disability,  and  the 
widespread  sympathy  for  his  condition,  made  it 
inexpedient  for  the  Yice-President  to  claim  the 
office  of  President  during  this  inability  of  the 
President  to  perform  the  duties  of  his  office.  But 
had  the  Vice-Presidency  then  been  held  by  a  per- 
son of  less  delicacy  of  sentiment  and  appreciation 
of  popular  opinion,  the  questions  of  who  should 
determine  when  an  inability  arises,  and  for  what 
term  the  Vice-President  should  hold  office  in  the 
event  of  the  disability  being  removed,  might  have 
become  very  serious  ones.  These  recent  events, 
therefore,  point  to  some  further  amendments  of 
the  Revised  Statutes  in  relation  to  the  Presidential 
office. 

The  President  is  not  subject  in  the  exercise  of 
his  discretion  to  any  judicial  interference.  The 
Supreme  Court  of  the  United  States  cannot  com- 
pel his  signature  to  any  act,  nor  cause  him  to 
refrain  from  doing  any  act.  There  is  but  one  way 
to  reach  an  abuse  of  his  authority,  and  that  is  by 
impeachment.  There  is  but  one  example  in  the 

history  of  the  United  States  of  an  impeachment  of 

4* 


82  CONSTITUTIONAL    HISTORY. 

the   President,  and   that    is   the  impeachment  of 
Andrew  Johnson. 

The  House  has  the  sole  power  of  impeachment. 
The  Senate  has  the  sole  power  to  try  impeach- 
ments. When  sitting  for  that  purpose,  they  are  on 
oath  or  affirmation.  When  the  President  of  the 
United  States  is  tried  the  Chief  Justice  of  the 
United  States  presides,  and  no  conviction  can  be 
had  without  the  concurrence  of  two-thirds  of  the 
members  present.  The  English  precedents  are 
followed  in  the  trial  by  impeachment  of  the  House 
appointing  triers,  and  the  impeached  officer  having 
counsel,  either  assigned  to  him  or  appointed  by 
him,  to  try  the  cause  in  his  behalf. 

Until  1868  the  President  had  the  power  to 
create  vacancies  of  the  offices  of  heads  of  depart- 
ments and  their  first  assistants,  by  demanding 
resignations  and  filling  vacancies  temporarily  until 
the  Senate's  consent  could  be  obtained.  In  con- 
sequence of  the  conflict  which  then  existed  be- 
tween the  Legislative  and  Executive  departments, 
eventually  resulting  in  the  impeachment  of  Presi- 
dent Johnson,  an  act  was  passed  preventing  the 
President  from  making  removals  from  office  and 
making  temporary  appointments,  except  in  the 
actual  cases  of  death,  voluntary  resignation,  absence 
or  sickness  of  the  chief  of  any  bureau. 


THE   EXECUTIVE   POWER.  83 

Under  the  implied  powers  which  the  President 
of  the  United  States  has  received  by  the  general 
investiture  of  power  as  the  chief  Executive  officer 
of  the  United  States,  may  be  enumerated  the  fol- 
lowing :  As  Commander-in-Chief  of  the  Army  and 
Navy  of  the  United  States,  he  has  power  to 
engage  in  hostilities,  to  institute  a  blockade,  and 
to  authorize  captures  and  condemnations  on  the 
high  seas.  He  has  power  to  recognize  a  State 
Government  in  so  far  as  to  recognize  whether  the 
government  organized  in  a  State  is  the  duly  con- 
stituted government  of  that  State.  He  has  power 
to  protect  aliens,  as  the  care  of  our  foreign  rela- 
tions is  committed  to  him ;  to  remit  forfeitures 
under  his  pardoning  power ;  to  order  a  nolle 
prosequi  to  be  entered  at  any  stage  in  a  criminal 
proceeding  in  the  name  of  the  United  States  ;  to 
order  a  new  trial  on  the  sentence  of  a  court 
martial ;  and  in  time  of  war  to  suspend  the  writ 
of  habeas  corpus  in  any  district  where  for  the  time 
being  the  civil  authorities  are  powerless.  He  is 
authorized  by  the  Constitution  to  appoint  heads  of 
departments  in  his  official  household.  This  is 
likewise  done  by  and  with  the  advice  and  consent 
of  the  Senate.  This  official  household  constitutes 
the  Cabinet.  The  term  Cabinet  is  not  known  to 
the  Constitution  of  the  United  States,  and  has 


84  CONSTITUTIONAL  HISTORY. 

been  adopted  in  American  political  parlance  in 
imitation  of  the  term  for  the  chiefs  of  the  depart- 
ments of  the  English  Government.  The  Execu- 
tive officers,  who  are  the  more  immediate  advisers 
of  the  President,  and  in  the  selection  of  whom 
greater  latitude  is  allowed  by  the  Senate  than  in 
that  of  any  other  officer,  are  the  Secretary  of  State, 
Secretary  of  Interior,  Secretary  of  the  Treasury, 
Secretary  of  "War,  Secretary  of  Navy,  Postmaster 
General,  and  Attorney  General. 

The  Departments  respectively  under  the  direc- 
tion of  the  secretaries  are  known  as  the  Depart- 
ment of  State,  the  Department  of  War,  Department 
of  the  Treasury,  Department  of  the  Navy,  Depart- 
ment of  the  Interior,  the  Post-office  Department, 
and  that  under  the  Attorney  General  as  the 
Department  of  Justice,  and  a  Department  of  Agri- 
culture, the  head  of  which  is,  however,  not  a 
Cabinet  officer. 

The  duties  of  the  several  Departments  of  State 
are  by  law  defined  to  be  correspondences,  com- 
missions, and  instructions  to  or  with  public 
ministers  and  consuls  from  the  United  States ; 
carrying  on  of  negotiations  with  public  ministers 
of  foreign  states  or  princes,  or  memorials  or  other 
applications  of  foreign  public  ministers  or  other 
foreigners,  or  such  other  matters  respecting 


THE  EXECUTIVE  POWEK.  85 

foreign  affairs  as  the  President  of  the  United 
States  shall  assign  to  the  department,  and  the 
Secretary  shall  conduct  the  business  of  the  depart- 
ment in  such  manner  as  the  President  shall 
direct. 

To  the  Secretary  of  State  is  also  entrusted  the 
custody  and  charge  of  the  seal  of  the  United  States 
and  the  seal  of  the  Department  of  State.  It  is  his 
duty  to  promulgate  the  laws  ;  to  publish  the  same  ;  to 
give  notice  of  intended  or  proposed  amendments  to 
the  Constitution  of  the  United  States  ;  to  give  notice 
of  the  adoption  of  constitutional  amendments,  and  to 
promulgate  the  same  ;  to  lay  before  Congress,  within 
ten  days  after  the  commencement  of  each  regular 
session,  a  statement  of  the  returns  of  collectors  and 
of  foreign  agents  ;  a  report  of  the  foreign  regulations 
of  commerce  and  other  commercial  information,  and 
of  consular  fees  ;  and  a  synopsis  of  such  of  his  com- 
munications to  and  from  diplomatic  officers  as  he 
may  deem  expedient  to  give  for  public  informa- 
tion ;  a  full  list  of  all  consular  offices,  &c. 

The  Department  of  the  Treasury  is  charged  by 
law  with  the  duty  of  adjusting  all  claims  and 
demands  whatsoever  by  the  United  States  or 
against  them  ;  to  keep  an  account  of  all  appropria- 
tions, receipts  and  expenditures,  and  make  esti- 
mates of  the  expenses  of  all  the  departments  of 


86  CONSTITUTIONAL    HISTOEY. 

the  Government ;  to  keep  accounts  of  all  receipts 
of  internal  revenue,  and  the  accounts  of  all  officers 
collecting  revenue ;  to  keep  an  account  of  all  ex- 
penditures for  contingent  expenses  ;  an  account  of 
all  expenditures  for  furniture,  repairs  for  bureaus ; 
and  an  account  of  all  the  funded  indebtedness. 
The  Secretary  signs  all  warrants  on  the  Treasury 
of  the  United  States,  and  is  charged  with  the  duty, 
from  time  to  time  to  digest  and  prepare  plans  for 
the  improvement  and  management  of  the  revenue, 
and  for  the  support  of  the  public  credit.  It  is  his 
duty  to  prescribe  the  forms  of  keeping  and  render- 
ing all  public  accounts  and  making  returns  ;  he  is 
charged  with  the  collection  of  all  duties  on  imports 
and  tonnage  ;  and  all  accounts  of  the  expenditures 
of  public  moneys  are  to  be  settled  within  each  fis- 
cal year,  except  where  the  distance  of  the  places 
where  such  expenditure  is  to  be  made  shall  make 
further  time  necessary. 

It  is  his  duty  to  interpret  the  revenue  and 
custom  laws  of  the  country,  and  to  make  proper 
regulations  not  inconsistent  with  law  in  relation  to 
such  collection.  He  is  charged  with  the  duty  of 
preparing  proper  statistics  showing  the  amounts  of 
goods  that  are  imported  and  exported  ;  and  also 
what  regulations  he  has  made  in  relation  thereto. 
He  is  authorized  to  receive  deposits  of  gold  and 


THE  EXECUTIVE  POWEB.  87 

to  give  certificates  therefor,  and  the  coin  of  the 
country  is  placed  under  his  supervision  and  con- 
trol. He  is  authorized  to  appoint  disbursing 
agents ;  to  appoint  persons  who  are  authorized  to 
recover  moneys  due  to  the  United  States,  and  to 
see  to  it  that  the  revenue  laws  of  the  country  are 
enforced.  The  Secretary  of  the  Treasury  is  re- 
quired to  make  an  annual  report  to  Congress, 
which  report  shall  contain,  according  to  the  pro- 
visions of  law,  an  estimate  of  the  public  revenue 
and  public  expenditure  for  the  fiscal  year  then  cur- 
rent ;  plans  for  improving  and  increasing  the 
revenues  from  time  to  time,  for  the  purpose  of 
giving  information  to  Congress,  and  adopting 
modes  of  raising  moneys  requisite  to  meet  the 
public  expenditures  ;  he  is  also  to  report  all  con- 
tracts for  the  supplies  of  the  service  which  have 
been  made  by  him  under  his  direction  during  the 
year  preceding,  and  also  a  statement  of  all  expendi- 
tures of  moneys  appropriated  for  the  discharge  of 
miscellaneous  claims  not  otherwise  provided  for, 
and  paid  by  the  Treasury ;  he  is  to  report  to  Con- 
gress his  rules  and  regulations  in  relation  to  the 
appraisal  of  goods  imported  into  the  United 
States,  and  to  make  a  report  showing  the  value  of 
such  goods,  and  how  much  duty  was  collected ;  a 
complete  statement  of  the  amounts  collected  from 


88  CONSTITUTIONAL    HISTOEY. 

seamen  and  the  amounts  expended  for  seamen ;  the 
amount  expended  at  each  Custom-house  and  the 
number  employed  thereat.  A  Bureau  of  Statistics 
is  created  under  his  direction  and  control,  which 
is  required  to  collect  statistics  of  the  agricultural, 
manufacturing,  and  domestic  trade  ;  of  the  currency 
and  banks  of  the  several  States  and  Territories ; 
and  the  Secretary  is  required  to  accompany  his 
annual  statement  of  public  expenditure  with  re- 
ports which  may  be  made  to  him  by  the  auditors 
charged  with  the  examination  of  the  accounts  of 
the  Department  of  War  and  the  Department  of 
Navy  respectively,  showing  the  application  of 
moneys  appropriated  for  those  departments  for  the 
respective  year.  He  is  required  to  lay  before 
Congress  annually  an  abstract  of  the  separate 
amounts  of  moneys  received  from  internal  duties 
or  taxes  in  each  of  the  respective  States  and 
Territories  or  election  districts  of  the  United 
States.  He  is  also  required  to  cause  an  annual 
report  of  statistics  of  commerce  and  navigation 
to  be  prepared  by  the  chief  of  the  Bureau  of 
Statistics,  to  be  likewise  laid  before  Congress  an- 
nually ;  to  report  the  number  of  persons  employed 
in  the  Coast  Survey  and  the  business  connected 
therewith,  and  the  amount  of  compensation  of  every 
kind  paid  therefor.  Every  quarter  he  is  required 


THE  EXECUTIVE   POWER.  89 

to  publish  in  some  newspaper  at  the  seat  of 
Government  a  statement  of  the  whole  receipts  of 
such  quarter,  and  the  whole  expenditures  of  such 
quarter ;  also  showing  the  amount  to  the  credit  of 
the  Treasury,  in  the  sub-Treasuries,  in  the  differ- 
ent banks,  in  the  Mint,  and  other  depositories  ;  the 
amount  for  which  drafts  have  been  given,  and 
those  remaining  unpaid ;  and  the  balances  remain- 
ing subject  to  draft ;  likewise  to  note  all  changes 
made  in  the  public  depositories,  and  the  reasons 
for  such  change. 

The  law  provides  for  the  appointment  of  con- 
trollers, auditors  and  treasurers  in  the  department, 
and  specifies  their  duties.  It  also  provides  for  the 
appointment  of  registers,  Commissioners  of  Cus- 
toms, Commissioners  of  Internal  Revenue,  Con- 
troller of  the  Currency,  and  of  the  Bureau  of 
Statistics,  and  Bureau  of  the  Mint.  The  heads  of 
these  several  departments  are  appointed  by  the 
President,  by  and  with  the  advice  and  consent  of 
the  Senate,  but  the  officers  so  appointed  are  placed 
under  the  direction  of  the  Secretary  of  the 
Treasury. 

The  Department  of  Justice,  at  the  head  of  which 
stands  the  Attorney-General  of  the  United  States, 
consists,  in  addition  to  the  Attorney-General,  of  an 
Assistant  Attorney-General,  a  Solicitor-General,  a 


90  CONSTITUTIONAL    HISTOEY. 

Solicitor  of  the  Treasury,  an  Assistant  Solicitor 
of  the  Treasury,  a  Solicitor  of  Internal  Revenue, 
a  Naval  Solicitor,  and  Examiner  of  Claims,  all  of 
which  are  appointed  by  the  President,  but  are 
under  the  direction  of  the  Attorney-General.  The 
Attorney-General  is  required  to  give  his  advice 
and  opinion  upon  all  questions  whenever  required 
by  the  President.  No  public  money  is  to  be  ex- 
pended upon  any  site  or  land  purchased  by  the 
United  States  for  any  purpose  until  the  written 
opinion  of  the  Attorney-General  is  had  in  favor  of 
the  validity  of  the  title,  and  the  District  Attorneys 
of  the  United  States  in  the  various  judicial  dis- 
tricts of  the  United  States  are  required,  upon  the 
application  of  the  Attorney-General,  to  furnish  any 
assistance  or  information  in  their  power  in  rela- 
tion to  the  title  of  public  property  lying  within 
their  respective  districts. 

Both  the  "War  and  Navy  Departments  are  au- 
thorized to  ask  for  advice  from  the  Attorney- 
General  on  any  question  of  law  upon  which  the 
heads  of  those  departments  may  have  doubt.  The 
Attorney-General  and  Solicitor-General  are  re- 
quired to  argue  suits  and  writs  of  error  and 
appeals  to  the  Supreme  Court  of  the  United  States, 
and  suits  in  the  Court  of  Claims  in  which  the 
United  States  is  interested.  And  the  officers  of 


THE   EXECUTIVE  POWER.  91 

the  Department  of  Justice,  under  the  direction  of 
the  Attorney-General,  are  required  to  give  all 
opinions  and  render  all  services  requiring  skill  of 
persons  learned  in  the  law,  necessary  to  enable  the 
President  and  heads  of  Departments,  heads  of 
Bureaus,  and  other  officers  in  the  departments  to 
discharge  their  respective  duties.  They  are  re- 
quired to  procure  proper  evidence  for,  and  to  con- 
duct and  prosecute  all  suits  and  proceedings  in 
the  Supreme  Court  and  Court  of  Claims,  in  which 
any  officer  of  the  United  States  is  a  party  or  may 
be  interested.  General  superintendence  is  given 
to  the  Attorney-General  over  all  the  United  States 
attorneys  and  marshals  of  all  districts  in  the 
United  States  as  to  the  manner  of  the  discharge 
of  their  respective  duties.  The  Attorney-General 
is  authorized  to  employ  counsel  in  such  cases  as 
in  his  discretion  may  require  additional  counsel. 

The  Solicitor  of  the  Treasury  has  a  general 
supervision  over  the  bonds  and  actions  of  all  per- 
sons charged  with  the  collection  of  taxes  and  in- 
ternal duties.  He  has  power  to  take  cognizance 
of,  and  to  take  measures  to  prevent  and  detect  all 
frauds  or  attempted  frauds  upon  the  revenue,  and 
to  make  such  rules  in  relation  to  the  collection  of 
the  revenue  as  in  his  judgment,  and  with  the  ap- 
probation of  the  Attorney-General,  he  may  see  fit. 


92  CONSTITUTIONAL    HISTORY. 

The  Attorney-General  is  required  annually  to 
print  an  edition  of  such  opinions  as  may  be 
deemed  by  him  worthy  of  permanent  record ;  and 
to  make  annually  a  report  of  the  conduct  of  his 
office  and  of  his  subordinates,  to  Congress. 

The  Post-office  Department  consists  of  the  Post- 
master-General and  three  Assistant  Postmasters- 
General,  appointed  by  the  President.  It  is  the 
duty  of  the  Postmaster-General  to  establish  and 
discontinue  post-offices,  to  prescribe  the  manner  of 
keeping  accounts  and  rendering  returns,  to  make 
contracts  for  postal  service  ;  by  and  with  the  con- 
sent of  the  President,  to  negotiate  postal  treaties 
and  conventions  ;  reduce  or  increase  the  rate  of 
postage  or  mail  matter  conveyed  between  the 
United  States  and  foreign  countries  ;  make  rules 
and  regulations  as  to  fines,  penalties,  forfeitures 
or  disabilities  in  relation  to  his  department.  He 
is  required  to  make  an  annual  report  to  Congress 
of  all  contracts  made  for  carrying  the  mail  within 
the  preceding  year ;  the  prices  paid,  etc.,  of  all 
land  and  water  mails  established  or  ordered  within 
the  preceding  year;  the  names  of  persons  em- 
ployed to  transport  it,  price  paid  etc.,  and  all 
allowances  made  to  contractors  within  the  preced- 
ing year  in  addition  to  the  sum  originally  stipu- 
lated in  their  respective  contracts,  and  the  reasons 


THE   EXECUTIVE  POWER.  93 

for  the  same;  a  report  of  all  the  curtailment  of 
expenses  effected  within  the  preceding  year;  a 
report  of  the  revenues  of  the  department  for  the 
preceding  year,  and  the  amount  actually  paid  for 
carrying  the  mail,  and  comparing  the  same  with 
preceding  years.  The  Postmaster  is  required  to 
report  to  Congress  all  contracts  made  for  the  car- 
riage of  mail  matter,  and  give  a  detailed  account 
of  the  postal  business  and  agencies  in  foreign 
countries,  which  report  is  first  to  be  submitted  to 
the  Secretary  of  the  Treasury,  and  then  printed 
and  submitted  to  Congress  as  part  of  the  Treasur- 
er's Report. 

The  Department  of  the  Navy  consists  of  the 
Secretary  of  the  Navy  and  Assistant  Secretary  of 
the  Navy  and  a  large  executive  force.  The  War 
Department  consists  of  the  Secretary  of  War  and 
a  large  executive  force.  It  is  unnecessary  to 
enter  into  detail  as  to  the  duties  and  functions  of 
the  Naval  and  War  Departments,  as  the  terms  in- 
dicate what  their  functions  are. 

The  Department  of  the  Interior  is  a  much  more 
complicated  one.  The  Secretary  of  the  Interior 
has  an  Assistant  Secretary,  appointed  by  the 
President.  The  Secretary  of  the  Interior  is 
charged  with  the  supervision  of  public  business 
relating  to  the  following  subjects  :  1.  The  census ; 


94  CONSTITUTIONAL    HISTORY. 

therefore  a  Census  Bureau  with  its  staff  of  officers 
is  under  his  direction  and  control.  2.  The  public 
lands,  including  mines.  3.  Indians.  4.  All  pen- 
sions and  bounty  lands.  5.  All  patents  for  inven- 
tions. 6.  The  custody  and  distribution  of  all 
publications.  7.  The  Education  Department.  8. 
The  Government  Hospital  for  the  Insane.  9.  The 
Columbia  Asylum  for  the  Deaf  and  Dumb.  Under 
him,  therefore,  there  is  a  Commissioner  of  the 
Land  Office ;  a  Commissioner  of  Indian  Affairs ;  a 
Commissioner  of  Pensions ;  a  Commissioner  of 
Patents,  and  Assistant  Commissioners;  Superin- 
tendent of  Public  Documents,  and  Commissioner 
of  Education, — all  appointed  by  the  President  and 
confirmed  by  the  Senate. 

A  supplemental  Executive  Department  was 
created  in  1862,  independent  of  the  other  depart- 
ments, but  the  head  of  which  is  not  a  member  of 
the  cabinet,  called  the  Department  of  Agriculture. 
This  commissioner  is  charged  with  the  duty  of 
procuring  and  preserving  all  information  concern- 
ing agriculture  which  can  be  obtained  by  means  of 
books  and  correspondence,  and  by  practical  and 
scientific  experiments ;  to  collect  new  and  valuable 
seeds  and  plants,  and  shall  test  by  cultivation  the 
value  of  such  of  them  as  may  require  such  tests, 
and  shall  propagate  such  as  may  be  worthy  of 


THE  EXECUTIVE   POWER.  95 

v 

propagation,  and  shall  distribute  them  among 
agriculturists.  This  purchase  and  distribution  of 
seeds  by  the  department  is  confined  to  rare  and 
uncommon  ones,  or  such  as  can  be  made  more 
profitable  by  frequent  changes  from  one  part  of 
the  country  to  another,  and  the  purchase  for  propa- 
gation of  trees,  plants,  shrubs,  vines,  and  cuttings, 
are  confined  to  those  which  are  adapted  to  general 
cultivation,  and  to  promote  the  interests  of  agri- 
culture and  horticulture  throughout  the  United 
States. 


CHAPTER  IV. 

THE  JUDICIAL   POWER. 

ONE  of  the  main  reasons  why  the  Articles  of 
Confederation  failed  to  bring  about  a  permanent 
national  entity,  was  because  no  proper  judicial 
organization  existed  thereunder  to  enforce  the 
law ;  Congress  was  made  the  tribunal  of  last  resort 
in  controversies  between  the  States,  and  the  only 
power  given  to  Congress  to  create  judicial  tribunals 
was  to  create  prize  courts. 

Alexander  Hamilton,  in  treating  of  the  Judiciary 
department  of  the  United  States  and  the  necessity 
for  its  creation,  with  reference  to  the  power  to 
adjudge  acts  void  which  are  passed  by  a  coordi- 
nate department — the  Legislature — says:  "The 
complete  independence  of  the  courts  of  justice  is 
peculiarly  essential  in  a  limited  Constitution.  By 
a  limited  Constitution  I  understand  one  which 
contains  certain  specified  exceptions  to  legislative 
authority,  such  for  instance,  as  that  it  shall  pass 

no  bill  of  attainder,  no  ex  post  facto  law  and   the 
96 


THE  JUDICIAL   POWER.  97 

like.  Limitations  of  this  kind  can  be  preserved  in 
practice  in  no  other  way  than  through  the  medium 
of  the  courts  of  justice,  whose  duty  it  must  be  to 
declare  all  acts  contrary  to  the  manifest  tenor  of 
the  Constitution  void ;  without  this  all  the  reser- 
vations of  particular  rights  or  privileges  would 
amount  to  nothing.  *  *  *  It  is  urged  that  the 
authority  which  can  declare  the  acts  of  another 
void  must  necessarily  be  superior  to  the  one  whose 
acts  may  be  declared  void.  As  this  doctrine  is  of 
great  importance  in  all  the  American  Constitu- 
tions, a  brief  discussion  of  the  ground  on  which 
it  rests  cannot  be  unacceptable." 

"  There  is  no  position  which  depends  on  clearer 
principles  than  that  every  act  of  delegated 
authority  contrary  to  the  tenor  of  the  commission 
under  which  it  is  exercised  is  void.  No  legisla- 
tive act,  therefore,  contrary  to  the  Constitution 
can  be  valid.  To  deny  this  would  be  to  affirm 
that  the  deputy  is  greater  than  his  principal ;  that 
the  servant  is  above  his  master ;  that  the  represen- 
tatives of  the  people  are  superior  to  the  people 
themselves ;  that  men  acting  by  virtue  of  powers 
may  do  not  only  what  their  powers  do  not  author- 
ize, but  what  they  forbid.  If  it  be  said  that  the 
legislative  body  are  themselves  the  constitutional 
judges  of  their  own  powers,  and  that  the  construe- 


98  CONSTITUTIONAL    HISTOEY. 

• 

tion  that  they  put  upon  them  is  conclusive  upon  the 
other  departments,  it  may  be  answered,  that  this 
cannot  be  the  natural  presumption  where  it  is  not 
to  be  collected  from  any  particular  provision  in 
the  Constitution.  It  is  not  otherwise  to  be  sup- 
posed that  the  Constitution  could  intend  to  enable 
the  representatives  of  the  people  to  substitute  their 
will  to  that  of  their  constituents.  It  is  far  more 
rational  to  suppose  that  the  courts  were  designed 
to  be  an  intermediate  body  between  the  people  and 
the  Legislature,  in  order,  among  other  things,  to 
keep  the  latter  within  the  limits  assigned  to  their 
authority.  The  interpretation  of  the  laws  is  the 
proper  and  peculiar  province  of  the  courts.  A 
Constitution  is  in  fact,  and  must  be  regarded  by 
the  judges  as  a  fundamental  law.  It  must,  there- 
fore, belong  to  them  to  ascertain  its  meaning  as 
well  as  the  meaning  of  any  particular  act  proceed- 
ing from  the  legislative  body.  If  there  should 
happen  to  be  an  irreconcilable  variance  between 
the  two,  that  which  has  the  superior  obligation 
and  validity  ought  to  be  preferred.  In  other  words, 
the  Constitution  ought  to  be  preferred  to  the 
statute,  the  intention  of  the  people  to  the  inten- 
tion of  their  agents.  Nor  does  the  conclusion  by 
any  means  suppose  a  superiority  of  the  judicial 
to  the  legislative  power.  It  only  supposes  that  the 


THE  JUDICIAL   POWER.  99 

power  of  the  people  is  superior  to  both,  and  that 
where  the  will  of  the  Legislature  declared  in  its 
statutes  stands  in  opposition  to  the  will  of  the 
people  declared  in  the  Constitution,  the  judges 
ought  to  be  governed  by  the  latter  rather  than  by 
the  former  ;  they  ought  to  regulate  their  decisions 
by  the  fundamental  laws  rather  than  by  those 
which  are  not  fundamental.  *  *  *  It  can  be  of 
no  weight  to  say  that  the  courts  on  the  pretence 
of  a  repugnancy  may  substitute  their  own  pleasure 
to  the  constitutional  intentions  of  the  Legislature. 
This  might  as  well  happen  in  the  case  of  two  con-? 
tradictory  statutes,  or  it  might  as  well  happen  in 
every  adjudication  upon  any  single  statute.  The 
courts  must  declare  the  sense  of  the  law,  and  if 
they  should  be  disposed  to  exercise  will  instead  of 
judgment,  the  consequence  would  equally  be  the 
substitution  of  their  pleasure  to  that  of  the  legis- 
lative body.  The  observation,  if  it  proved  anything, 
would  prove  that  there  ought  to  be  no  judges  dis- 
tinct from  that  body.  If,  then,  the  courts  of  justice 
are  to  be  considered  as  the  bulwarks  of  a  limited 
constitution  against  legislative  encroachments, 
this  consideration  will  afford  a  strong  argument 
for  the  permanent  tenure  of  judicial  officers,  since 
nothing  will  contribute  so  much  as  this  to  that  in- 
dependent spirit  in  the  judges  which  must  be 


100  CONSTITUTIONAL    HISTORY. 

essential  to  the  faithful  performance  of  so  arduous 
a  duty." — Federalist  No.  78. 

I  have  cited  the  foregoing  passage  at  length  be- 
cause vesting  courts  with  power  to  declare  the  acts 
of  the  highest  law-making  power  unconstitutional 
would,  at  first  blush,  seem  to  be  dangerous.  In 
the  mother  country,  from  which  the  United  States 
derived  their  institutions,  such  a  power  is  not 
given  to  the  courts.  Violent  constructions  of  the 
meaning  of  words  employed  by  the  Legislature  are 
sometimes  resorted  to,  on  the  theory  that  Parlia- 
ment could  not  have  intended  to  mean  anything 
repugnant  to  natural  justice  ;  yet  no  British  Court 
ever  declared  an  act  of  Parliament  void  on  the 
ground  of  a  violation  of  the  English  Constitution. 

But  for  the  fact  that  there  is  a  check  upon  the 
judges  to  prevent  them  from  wantonly  vetoing  leg- 
islation by  declaring  it  to  be  unconstitutional,  the 
judiciary  would  be  the  supreme  governing  power  of 
the  land,  and  that  as  there  is  no  power  superior  to 
the  judicial  one,  to  revise  their  errors  of  judgment  or 
to  make  inquiry  whether  they  have  reasonably  exer- 
cised that  power  or  not,  it  is  within  the  power  of  the 
court  of  last  resort  of  the  United  States  to  declare 
every  act  unconstitutional,  however  violent  such  a 
declaration  may  be  and  thus  nullify  all  legislation. 
There  is,  however,  in  the  Constitution  of  the  United 


THE  JUDICIAL   POWER.  101 

States  a  check  upon  this  power,  lodged  in  the  leg- 
islative body  itself.  The  power  to  impeach  and  to 
remove  for  any  cause  app^^^'^ffici^^to  two- 
thirds  of  the  Senate ;  tipon  >  preaeptm^nt : by;  the 
House,  makes  all  the' 'members  ouf  tlie*  Supreme 
Court  of  the  United  States  subject  to  removal  if 
they  are  guilty  of  a  gross  violation  of  the  judicial 
discretion  lodged  by  the  Constitution  in  them. 
And  as  the  members  of  the  Senate,  who  are 
charged  with  the  duty  of  trying  the  impeachment 
are  responsible  to  their  States,  and  the  members 
of  the  House  who  make  the  presentment  are  in 
their  turn  responsible  to  their  constitutents — the 
people  of  the  States — (by  this  system  of  checks 
and  balances  thus  created  by  the  Constitution  for 
the  purpose  of  preserving  each  department  within 
its  proper  sphere)  are  finally  called  upon  to  deter- 
mine whether  their  servants  have  acted  within  the 
limits  of  the  powers  respectively  delegated  to 
them. 

The  reasoning  of  Hamilton  seems  to  be  conclu- 
sive— that  no  written  Constitution  deputing  limited 
powers  can,  by  any  possibility,  be  enforced  against 
the  deputed  agents  exercising  for  the  time  such 
powers,  unless  a  court  of  judges,  sitting  for  life  or 
during  good  behavior,  is  interposed  between  the 
people  and  their  legislative  agents,  clothed  with 


102  CONSTITUTIOJSTAL    HISTOEY. 

the  power  to  declare  a  final  opinion  on  the  consti- 
tutionality of  the  statutes  emanating  from  the 
Legislative •  ^Jie  i  .Constitution  of  the  United 
States.  (Joes,  natatand.alone.in  that  particular.  All 
the-' Stale  '"Can's fritiitiioais'  'grant  to  the  State  Courts 
of  last  resort  the  power  finally  to  declare  upon 
the  constitutionality  of  State  legislation,  and  every 
statute,  therefore,  passed  in  the  United  States  may 
be  called  into  question,  as  to  the  constitutional 
power  to  enact  the  same,  either  before  a  State  or 
federal  court,  or.  before  both. 

The  judicial  power  of  the  United  States  is 
lodged  under  the  Constitution  in  a  Supreme  Court 
and  such  inferior  tribunals  as  Congress  may  from 
time  to  time  ordain  and  establish. 

The  judges  of  the  Supreme  Court  and  inferior 
courts  hold  their  offices  during  good  behavior,  and 
they  are  entitled  to  receive  a  compensation  which, 
during  their  continuance  in  office,  is  not  permitted 
to  be  diminished.  The  judicial  power  conferred 
upon  the  Supreme  Court  extends  to  all  cases  in 
law  and  in  equity  arising  under  the  Constitution, 
the  laws  of  the  United  States  and  treaties  made,  or 
which  shall  be  made,  under  their  authority  ;  to  all 
cases  affecting  ambassadors  and  other  public  min- 
isters and  consuls;  to  all  cases  of  admiralty  and  mari- 
time jurisdiction  to  which  the  United  States  shall 


THE   JUDICIAL   POWEE.  103 

be  a  party  ;  to  controversies  between  two  or  more 
States  ;  between  a  State  and  citizens  of  another 
State ;  between  citizens  of  different  States ;  be- 
tween citizens  of  the  same  State  claiming 
lands  under  grants  of  different  States  ;  and 
between  a  State  or  the  citizens  thereof  and  foreign 
States,  citizens  or  subjects.  By  the  eleventh 
amendment  to  the  Constitution,  however,  it  was 
enacted  that  the  judicial  power  of  the  United 
States  was  not  to  be  construed  to  extend  to  any 
suits  in  law  or  inequity,  commenced  or  prosecuted 
against  one  of  the  States  by  citizens  of  another 
State,  or  by  citizens  or  subjects  of  any  foreign 
State. 

It  is  further  provided  in  the  Constitution,  that 
in  all  cases  affecting  ambassadors  and  other  public 
ministers,  consuls,  and  those  in  which  a  State  shall 
be  a  party,  the  Supreme  Court  shall  have  original 
jurisdiction.  In  all  the  other  cases  before  mentioned, 
the  Supreme  Court  has  appellate  jurisdiction,  both 
as  to  law  and  fact,  with  such  restrictions  and  regu- 
lations as  Congress  may  make.  As  the  Constitu- 
tion itself  declared  wherein  the  original  jurisdic- 
tion of  the  Supreme  Court  shall  consist,  Congress 
thereafter  became  powerless  to  assign  original 
jurisdiction  to  that  court  in  cases  other  than 
those  specified  in  the  article.  A  State  may  bring 


104  CONSTITUTIONAL    HISTORY. 

an  original  suit  in  the  Supreme  Court  against  a 
citizen  of  another  State,  but  not  against  one  of  her 
own  citizens. 

Although  the  Constitution  vests  the  Supreme 
Court  with  original  jurisdiction  in  certain  cases 
mentioned,  which  may  not  be  enlarged  by  Con- 
gress, Congress,  nevertheless,  may  lodge  concur- 
rent jurisdiction  in  some  of  the  inferior  courts 
created  by  it  under  the  powers  conferred  by  the 
Constitution. 

Under  the  Constitution,  the  States  are  prohibited 
from  doing  a  number  of  things,  some  of  which  are 
incompatible  with  the  interests  of  the  Union. 
There  would  be  no  possibility  to  keep  the  States 
within  the  limitations  thus  imposed  if  the  States 
themselves  were  to  be  the  judges  of  the  extent  of 
such  inhibition,  or  its  application  to  a  particular 
case  ;  and,  therefore,  the  Supreme  Court  of  the 
United  States  is  necessarily  lodged  with  the  power 
to  correct  and  prevent  infractions  thereof.  "  This 
body,"  says  Hamilton,  "  must  have  either  a  direct 
negative  on  the  State  laws,  or  authority  in  the 
federal  courts  to  over-rule  such  as  might  be  a 
manifest  contravention  of  the  articles  of  the  Union. 
There  is  no  third  course  that  I  can  imagine.  *  *  * 
Controversies  between  the  nation  and  its  members 
or  citizens  can  only  be  properly  referred  to  national 


THE  JUDICIAL   POWEE.  105 

tribunals.     Any  other  plan  would  be  contrary  to 
reason,  to  precedent,  and  decorum." 

"The  peace  of  the  whole,"  again  says  Hamilton, 
"  ought  not  to  be  left  at  the  disposal  of  a  part. 
The  Union  will  undoubtedly  be  answerable  to 
foreign  powers  for  the  conduct  of  its  members,  and 
the  responsibility  for  an  injury  ought  ever  to  be 
accompanied  with  the  faculty  of  preventing  it. 
Therefore,  the  federal  judiciary  ought  to  have  cog- 
nizance of  all  causes  in  which  the  citizens  of 
other  countries  are  concerned.  This  is  not  less 
essential  to  the  preservation  of  public  faith  than 
to  the  security  of  public  tranquility.  The  power 
of  determining  causes  between  two  States,  between 
one  State  and  the  citizens  of  another,  and  between 
the  citizens  of  different  States,  is  perhaps  not  less 
essential  to  the  peace  of  the  Union  than  that  which 
has  just  been  examined.  The  institution  of  the 
Imperial  Chamber  by  Maximillian,  towards  the 
close  of  the  fifteenth  century,  did  much  to  prevent 
the  dissensions  and  private  wars  which  had  there- 
tofore harried  Germany.  It  may  be  esteemed 
a  basis  of  the  Union,  that  the  citizens  of 
each  State  shall  be  entitled  to  all  the  privileges 
and  immunities  of  the  citizens  of  the  several 
States,  and  if  it  be  a  just  principle  that  every 

Government  ought  to  possess  the  means  of  execut- 
5* 


106  CONSTITUTIONAL    HISTOKT. 

ing  its  own  provisions,  by  its  own  authority,  it  will 
follow,  that  in  order  to  the  inviolable  maintenance 
of  that  equality  of  privileges  and  immunities  to 
which  the  citizens  of  the  Union  will  be  entitled 
the  national  judiciary  ought  to  preside  in  all  cases 
in  which  one  State  or  its  citizens  are  opposed  to 
another  State  or  its  citizens." 

The  jurisdiction  conferred  in  the  case  of  treaties 
is  so  necessary  a  one  that  it  is  almost  too  clear  for 
argument.  The  cognizance  of  maritime  causes  is 
a  necessary  part  of  the  power  of  the  National 
Government  as  a  matter  of  public  peace.  It  is  the 
only  jurisdiction  that  was  conferred  by  the  Articles 
of  Confederation  on  national  courts. 

The  only  case  where  citizens  of  the  same  State 
can  go  into  the  courts  of  the  United  States,  is 
where  they  claim  lands  under  grants  of  different 
States. 

Shortly  after  the  adoption  of  the  Constitution, 
the  Judiciary  Act  was  passed,  constituting  national 
tribunals  inferior  to  the  Supreme  Court,  the  powers 
and  duties  of  which,  under  judicial  interpretation, 
we  propose  now  to  examine. 

When  the  question  to  which  the  judicial  power 
of  the  Federal  Government  extends  under  the 
Constitution  forms  an  ingredient  of  the  original- 
cause,  it  is  in  the  power  of  Congress  to  give  the 


THE  JUDICIAL   POWER.  107 

federal  courts  jurisdiction  of  that  cause,  although 
other  questions  of  fact  or  law  may  be  involved  in  it. 
The  other  questions  may  be  decided  as  incidental 
to  that  which  gives  the  jurisdiction.  Cases  may 
arise  under  the  laws  of  the  United  States  by  im- 
plication, so  that  they  come  under  the  judicial 
power  of  the  Federal  Government.  It  is  not  unus- 
ual for  a  legislative  act  to  involve  consequences 
not  expressed.  Where  a  defendant  seeks  protec- 
tion of  the  laws  of  the  United  States  or  under  the 
Constitution  in  any  of  the  States,  it  is  a  case  aris- 
ing under  the  law,  and  gives  to  the  United  States 
courts  jurisdiction. 

The  Constitution  not  only  confers  admiralty 
jurisdiction  to  the  courts  of  the  United  States,  but 
as  it  superadds  the  word  maritime,  every  latent 
doubt  is  removed  thereby  as  to  the  extent  of  the 
jurisdiction,  and  it  has,  therefore,  been  held  to  in- 
clude all  maritime  contracts,  torts  and  injuries 
which  are,  in  the  understanding  of  the  common 
law  as  well  as  of  the  admiralty  law,  maritime 
causes.  The  grant,  therefore,  of  admiralty  power 
to  the  federal  courts  was  not  intended  to  be  limited 
or  interpreted  by  the  theory  of  cases  of  admiralty 
jurisdiction  in  England  when  the  Constitution  was 
adopted.  The  admiralty,  therefore,  has  jurisdic- 
tion over  maritime  contracts,  although  the  power 


108  CONSTITUTIONAL   HISTOKY. 

contemplated  begins  and  ends  in  the  State,  and  is 
prescribed  only  in  waters  within  the  State ;  and 
the  admiralty  jurisdiction  extends  to  torts  com- 
mitted on  the  navigable  waters  although  they  are 
within  the  body  of  a  county  within  the  State. 

As  to  the  original  jurisdiction  of  the  Supreme 
Court  of  the  United  States,  Congress  cannot  add 
to  nor  diminish  that  jurisdiction  ;  but  in  the  crea- 
tion of  the  inferior  federal  courts,  it  may  so  regulate 
the  jurisdiction  conferred  by  the  Constitution  as  to 
deprive  one  court  of  it,  substitute  another  court, 
or  change  the  courts  upon  which  jurisdiction  has 
been  conferred  at  its  own  will ;  and  of  course  it 
can  modify  the  practice  of  the  court  in  any  other 
respect  that  it  may  deem  conducive  to  the  admin- 
istration of  justice. 

It  is  not  competent  for  the  States,  by  any  local 
legislation,  to  enlarge  or  limit,  or  narrow  the  ad- 
miralty and  maritime  jurisdiction  of  the  federal 
courts.  In  exercising  this  jurisdiction  they  are 
exclusively  governed  by  the  legislation  of  Congress, 
and  in  the  absence  thereof,  by  the  general  princi- 
ples of  the  maritime  law.  The  State  Legislatures 
have  no  right  to  prescribe  the  rule  by  which  the 
federal  courts  shall  act,  nor  the  jurisprudence 
which  they  shall  administer.  If  any  other  doc- 
trine were  established  it  would  amount  to  a  com- 


THE  JUDICIAL   POWER,  109 

plete  surrender  of  the  jurisdiction  of  the  federal 
courts,  to  the  fluctuating  policy  and  legislation  of 
the  States.  If  the  States  have  a  right  to  pre- 
scribe any  rule,  they  have  a  right  to  prescribe 
all  rules,  to  limit,  control,  or  bar  suits  in  national 
courts. 

In  an  early  case  before  the  Supreme  Court  of  the 
United  States  it  was  claimed  that  an  Indian  nation 
with  which  the  Government  had  entered  into  en- 
gagements analogous  to  treaties,  was  a  foreign 
state  in  the  sense  of  the  Constitution;  but  this 
claim  was  negatived  by  the  court,  and  the  exist- 
ence of  such  tribe  as  an  independent  power  denied. 
The  Indians  in  that  respect  form  an  anomaly  in 
American  jurisprudence,  because  they  are  neither 
citizens  nor  aliens  while  in  their  tribal  condition. 
They  are  under  the  exclusive  jurisdiction  of  a  sub- 
department  of  the  Interior  Department  of  United 
States  government  known  as  the  Indian  Depart- 
ment, but  during  a  brief  period  they  were  under 
the  jurisdiction  of  the  War  Department. 

There  are  many  cases  where  the  State  courts 
have  concurrent  jurisdiction  with  the  United  States 
courts,  such  as  where  the  United  States  sues,  where 
a  State  sues  a  citizen  of  another  State,  where  a 
State  sues  an  alien,  where  a  citizen  of  one  State 
sues  another  State,  where  a  citizen  sues  an  alien 


110  CONSTITUTIONAL  HISTORY. 

and  where  an  alien  sues  a  citizen.  In  all  such 
cases,  however,  it  is  provided  by  United  States 
statute,  that  a  removal  can  be  had  of  such  causes 
either  before  or  after  issue  joined  and  before  trial, 
into  the  United  States  courts  by  either  party  to 
the  record. 

The  reader's  attention  has  already  been  drawn 
to  the  Amendment  of  the  Constitution  which  pro- 
vides that  a  State  cannot  be  made  a  party  at  the 
suit  of  a  citizen  of  its  own  State  or  of  another  State, 
adopted  for  the  purpose  of  guarding  against  the 
impairment  of  the  dignity  of  the  State  by  being 
constantly  subjected  at  the  instance  of  any  private 
individual  to  being  dragged  before  the  Supreme 
Court  of  the  United  States  as  a  delinquent.  Al- 
though this  provision  guards  a  State,  as  such,  from 
being  made  a  party,  nevertheless  the  construction 
given  by  the  United  States  courts  to  this  clause, 
allows  State  officers,  upon  whom  rests  the  duty  to 
perform  an  act  under  the  direction  either  of  the 
Constitution  of  the  United  States  or  a  statutory 
law  of  the  United  States,  to  be  subjected  to  man- 
datory proceedings  on  the  part  of  the  Supreme 
Court  of  the  United  States,  compelling  them  to  con- 
form to  judgments  and  decrees,  and  to  perform 
or  not  to  perform  a  particular  act. 

At  the  time  of  the  formation  of  the  Constitution 


THE  JUDICIAL   POWEE.  Ill 

considerable  criticism  was  made  upon  the  clause 
which,  secured  a  jury  trial  in  criminal  cases  alone  ; 
but  as  the  common  law  of  England  was  part  of  the 
heritage  of  the  people  of  the  United  States,  and  as 
a  large  part  of  the  system  of  jurisprudence  which 
was  thus  transferred  to  the  American  people  from 
England  was  that  which  was  administered  by 
chancellors  without  a  jury,  it  was  deemed  wise 
not  to  interfere  with  the  body  of  law  wherein  jury 
trials  were  unknown,  for  which  no  substitute  could 
readily  be  found.  Besides,  as  the  Constitution  of 
the  United  States  was  mainly  intended  to  guard 
against  tyranny,  and  as  the  tyrannical  powers  of 
government  would  be  exercised  not  in  private 
personal  claims  cognisable  in  equity  courts,  but 
through  the  criminal  courts,  and  might  be  attempted 
to  be  exercised  by  bills  of  attainder  passed  by  pliant 
legislative  bodies,  the  provision  preventing  the  pas- 
sage of  ex  post  facto  laws  and  bills  of  attainder  and 
securing  to  every  man  the  right  to  a  trial  by  jury 
at  the  place  where  the  alleged  crime  was  supposed 
to  be  committed,  was  a  sufficient  safeguard  against 
the  tyranny  of  executive  and  legislative  power.  A 
statute  was  therefore  held  to  be  unconstitutional 
which  provided  that  a  party  might  be  tried  by  the 
court  without  a  jury  on  a  charge  of  libel,  although 
that  statute  gave  him  the  right  to  appeal  to  another 


112  CONSTITUTrOlSrAL   HISTOEY. 

court  where  the  charge  must  be  tried  by  a  jury,  be- 
cause the  accused  was  entitled  in  the  first  instance 
to  be  tried  by  a  jury  without  having  his  cause  prej- 
udiced by  a  conviction  by  a  court  prior  to  such 
trial ;  and  although  the  statute  gave  the  prisoner 
power  to  determine  how  he  should  be  tried,  yet  as 
the  constitutional  provision  was  intended  not  for 
the  protection  of  one  individual,  but  for  the  pro- 
tection of  the  community,  such  a  waiver  of  his 
rights  was  not  conclusive :  the  courts  would  look 
at  the  record  alone,  and  if  the  trial  was  unconsti- 
tutional the  individual  waiver  made  no  difference  as 
to  the  illegality  of  the  conviction. 

No  provision  in  the  United  States  Constitution 
is  perhaps  more  conservative  of  individual  liberty, 
or  more  carefully  worded  in  that  particular  than 
that  which  relates  to  treason.  No  case  of  con- 
structive treason  can  arise  under  the  plain  provision 
of  the  Constitution  in  that  particular.  No  con- 
spiracy against  the  Government,  however  clear,  un- 
less it  consists  of  the  actual  levying  of  war,  can  be 
construed  to  be  treason.  Even  resistance  to  the 
execution  of  the  laws  of  the  United  States  accom- 
panied with  force,  if  such  resistance  is  for  a  private 
purpose  only,  is  not  treason.  To  constitute  the 
offence  of  treason,  the  resistance  must  be  of  a  public 
nature. 


THE   JUDICIAL   POWEE.  113 

Under  the  section  which  gives  to  the  citizen  of 
each  State  the  privileges,  and  immunities  of  the 
citizens  of  the  several  States,  it  has  been  held  that 
a  citizen  of  one  State  cannot  claim  the  right  to  vote 
for  an  election  to  office  in  another  State  in  which 
he  is  not  a  citizen  under  the  special  laws  of  that 
State.  Each  State  has  the  right  to  declare  who  its 
citizens  in  a  political  sense  shall  be.  The  meaning 
of  these  rights  of  a  citizen  of  one  State  in  other 
States  has  been  limited  to  the  right  to  hold  and 
dispose  of  real  and  personal  property,  to  trade,  and 
to  transact  all  the  private  affairs  of  life  ;  but  it  is 
held  that  it  was  not  intended  by  the  Constitution 
to  obliterate  the  privileges  and  immunities  which 
arise  from  citizenship  iia  the  several  States,  nor  to 
interfere  with  the  rights  of  the  States  to  pass  such 
laws  as  they  may  see  fit  by  which  they  can  properly 
determine  whom  to  admit  to  the  right  of  suffrage, 
the  time  of  residence  within  the  State  necessary  to 
constitute  citizenship,  nor  to  limit  the  power  of  the 
States  to  subject  their  citizens,  and  therefore  the 
citizens  of  all  other  States,  to  certain  regulations 
and  limitations  as  to  political  rights  arising  from 
property  or  residence  considerations.  Nor  can  a 
citizen  of  one  State  claim  immunity  from  the  laws 
to  which  the  State  subjects  its  own  citizens.  The 
main  purpose  of  this  provision  is  to  inhibit  dis- 


114  CONSTITUTIONAL    HISTOEY. 

criminating  legislation  against  citizens  of  one  by 
other  States,  and  to  secure  for  them  the  equal 
protection  of  the  laws  of  all  States.  Nor  can  a 
citizen  claim  protection  of  the  laws  of  his  own  State 
in  another  State,  because  were  he  permitted  to  do 
so,  his  rights  would  be  superior  in  the  State  of 
which  he  is  not  a  citizen  to  those  which  he  has 
wherein  he  is  a  citizen.  Another  limitation  exists, 
that  the  word  citizen  means  citizen  of  the  United 
States.  If  either  of  the  States  recognized  certain 
persons  as  citizens  who  are  not  so  recognized  by 
the  United  States,  such  classes  thus  created  have 
not  the  immunities  and  privileges  accorded  to  the 
citizens  of  the  United  States.  If  a  State  were  to 
recognize  as  citizens  of  the  State  women  or  minors 
who  are  not  admitted  to  the  rights  of  citizenship 
in  the  United  States,  they  could  not  claim  this 
general  citizenship  by  reason  of  the  special  law 
creating  them  citizens  within  the  domain  of  a  single 
State. 

Under  the  clause  of  the  Constitution  of  the 
United  States  which  gives  Congress  the  power  to 
dispose  of  and  make  all  needful  rules  and  regula- 
tions respecting  the  territory  belonging  to  the 
United  States,  a  considerable  body  of  legislation 
and  of  judicial  decisions  has  sprung  up  in  relation 
to  the  public  lands  of  the  country.  At  the  time  of 


THE  JUDICIAL   POWEE.  115 

the  adoption  of  the  Constitution  a  vast  body  of 
land  was  ceded  by  several  States  to  the  general 
Government.  By  the  Louisiana  and  Florida  pur- 
chases, the  Texas  acquisitions,  and  subsequently  by 
the  purchases  from  Mexico  under  the  Guaclalupe 
Hidalgo  treaty  of  a  large  proportion  of  the  present 
western  coast  of  the  United  States,  and  finally 
by  the  purchase  of  Alaska,  an  enormous  territory, 
covering  three  and  a  half  million  square  miles,  came 
into  the  possesion  of  the  United  States  to  act  with 
as  it  saw  fit.  With  this  domain  the  Government 
dealt ;  first,  in  selecting  vast  tracts  for  the  Indian 
tribes ;  secondly,  in  reserving  miners'  rights ; 
thirdly,  in  providing  homesteads  for  actual  set- 
tlers ;  fourthly,  in  granting  concessions  to  soldiers 
in  the  Indian,  Mexican,  and  Civil  wars  by  way  of 
bounty  ;  fifthly,  in  gifts  to  States  for  educational 
and  other  purposes  ;  sixthly,  in  making  enormous 
grants  to  railway  corporations  as  inducements  to 
build  the  trans-continental  lines  which  connect  the 
Pacific  with  the  Atlantic  coasts  ;  seventhly,  by  the 
sale  of  the  public  lands  as  a  source  of  revenue. 
Under  the  homestead  laws  any  person  may  select 
one  hundred  and  sixty  acres,  and  after  a  specified 
time,  if  he  erects  thereon  a  house  and  actually  tills 
the  soil  and  gives  notice  of  his  intention  to  occupy 
the  same,  he  can  for  a  mere  nominal  payment  coy- 


116  CONSTITUTIONAL    HISTORY. 

ering  expense  of  issue  of  patent,  etc.,  become  the 
owner  of  the  land  he  had  in  possession. 

Under  the  Florida,  Louisiana,  and  Mexican 
purchases  the  United  States  was  called  upon  to 
deal  with  grants  of  great  bodies  of  land  which  had 
been  by  the  Spanish  and  French  Crowns  and 
Mexican  Government  ceded  to  individuals,  colonies 
and  adventurers  during  the  prior  occupation  of 
that  territory  by  these  foreign  governments. 
Under  the  promise  given  by  the  treaties  by  which 
the  purchases  were  made,  that  full  faith  and  credit 
would  be  given  to  titles  theretofore  acquired  in 
good  faith,  the  United  States  has  issued  patents 
for  vast  tracts  of  those  territories  to  individuals 
whose  claims  of  title  antedated  the  cession  to  the 
United  States.  An  attempt  has  been  made  in 
recent  years  to  limit  the  rights  acquired  under 
such  patent  to  eleven  square  leagues,  but  such 
efforts  have  been  rejected  by  Congress,  on  the 
ground,  that  however  desirable  it  may  be  to  pre- 
vent the  public  domain  from  being  monopolized, 
good  faith  demanded  and  the  treaties  compelled 
respect  for  such  prior  titles  by  immunity  from  the 
claim  of  the  United  States  to  lands  thus  segregated 
from  the  public  domain. 

Under  the  provision  of  the  Constitution  which 
gives  to  the  Constitution  of  the  United  States  and 


THE   JUDICIAL   POWER.  117 

the  laws  of  Congress  supreme  power,  only  such 
power  is  meant  which  has  been  specifically  or  by 
necessary  implication  conferred  upon  Congress  by 
the  Constitution.  The  States  are  sovereign  and 
independent  governments  in  all  matters  not  dele- 
gated to  the  general  Congress.  Their  power  to 
tax  is  unrestricted  unless  they  exercise  it  in  such 
a  way  as  to  impede  the  operation  of  proper  United 
States  legislation  or  the  functions  of  United  States 
officers.  In  this  power  the  State  is  sovereign  and 
supreme,  and  its  wisdom  or  fairness  cannot  be  in- 
quired into  by  federal  tribunals. 

The  amendments  to  the  Constitution,  with  the 
exception  of  the  last  three,  are  mainly  intended  to 
secure  personal  rights  against  infringement  by 
the  United  States  Government.  Under  the  first 
amendment  which  inhibits  Congress  from  passing 
any  law  respecting  the  establishment  of  religion  or 
prohibiting  the  free  exercise  of  speech,  of  the  press, 
or  of  the  people  peaceably  to  assemble,  it  has  been 
held  that  Congress  has  no  power  to  punish  indi- 
viduals for  disturbing  assemblies  of  peaceable 
citizens  ;  that  this  is  the  prerogative  of  the  several 
States,  and  that  it  belongs  to  the  preservation  of 
the  public  peace  entrusted  to  local  legislation. 

Although  the  right  of  the  people  to  keep  and 
bear  arms  is  secured  by  the  Constitution  of  the 


118  CONSTITUTIONAL    HISTORY. 

United  States,  the  provision  has  been  held  not  to 
prevent  the  passage  of  a  law  to  prevent  the  carry- 
ing of  concealed  weapons. 

Under  the  provision  which  secures  the  right  of 
the  people  against  unreasonable  searches  and 
seizures,  it  has  been  held  that  those  provisions  of 
the  United  States  revenue  laws  which  authorize  a 
revenue  officer  to  issue  a  summons  for  the  produc- 
tion of  books  and  papers  were  valid,  and  that  this 
provision  in  itself  does  not  prevent  the  Legislatures 
of  the  several  States  in  absence  of  any  State  and  con- 
stitutional inhibition  from  passing  such  seizure 
laws  as  they  see  fit. 

The  provisions  securing  all  persons  held  to 
answer  for  a  capital  or  otherwise  infamous 
crime  against  conviction  except  by  a  presentment 
or  indictment  of  a  grand  jury,  except  in  cases  aris- 
ing under  the  land  and  naval  forces  in  time  of  war, 
or  public  danger,  have  been  construed  not  to  apply 
to  misdemeanors,  and  not  to  apply  to  trials  in  a 
State,  court  for  an  alleged  crime  without  any  pre- 
vious indictment  by  a  grand  jury.  And  although 
a  man  may  not  be  twice  put  in  jeopardy  of  life  or 
limb  for  the  same  offence,  nevertheless  he  may  be 
twice  tried  for  the  same  crime,  if  no  acquittal  or 
conviction  has  been  had  by  a  prior  jury  because 
of  a  disagreement  or  mis-trial.  In  the  provision 


THE  JUDICIAL   POWER.  119 

that  no  man's  property  or  person  shall  be  subjected 
to  trial  except  by  due  process  of  law,  process  has 
been  held  to  mean  some  form  of  judicial  proceed- 
ing known  to  the  common  law.  Therefore,  an 
order  of  the  President  is  not  due  procees,  nor  is 
a  statute  which  deprives  a  man  of  his  property 
by  t^e  repeal  of  a  prior  grant  of  land  due  pro- 
cess. Bights  once  acquired  cannot  be  divested 
without  a  process  known  to  judicial  forms,  result- 
ing in  a  trial  of  some  kind. 

In  the  same  amendment  it  is  provided  that  no 
private  property  shall  be  taken  for  public  use 
without  just  compensation.  This  of  course  implies 
that  no  private  property  shall  be  taken  for  private 
use  at  all,  with  or  without  compensation.  Public 
use,  of  course,  implies  all  use  made  necessary  by 
war,  in  which  event  property  may  be  taken  without 
compensation ;  and  also  for  all  public  purposes, 
when  there  is  no  war,  which  arise  under  the  exer- 
cise of  the  power  of  eminent  domain.  This  need 
not  be  exercised  directly  by  the  general  Congress, 
but  may  be  deputed  to  corporations  by  giving  grants 
of  power  to  them  to  perform  functions  public 
in  its  character,  such  as  building  of  roads,  bridges, 
water-ways,  &c.,  and  who  may  be  empowered  to 
exercise  the  right  of  eminent  domain  on  making 
compensation  in  a  manner  provided  by  a  statute. 


120  CONSTITUTIONAL    HISTORY. 

No  State  nor  the  United  States  can  take  property 
from  individuals  for  ends  which  are  not  public. 
Thus  it  has  been  held  that  to  exercise  the  taxine 

o 

power  in  aid  of  private  enterprises,  however  desir- 
able the  encouragement  of  such  enterprises  may  be 
for  the  general  prosperity  of  the  community,  is  un- 
constitutional and  improper  legislation.  It  is  pos- 
sible that  at  some  future  day  the  Supreme  Court 
of  the  United  States  may  reverse  its  former  de- 
cisions under  the  regulating  of  commerce  clause 
and  upon  the  ground  just  stated  declare  protective 
tariff  legislation  under  the  guise  of  revenue 
laws,  unconstitutional.  No  State  can  condemn  the 
property  of  the  United  States.  The  power  in  that 
respect  of  the  Federal  Government  is  complete  in 
itself.  It  can  neither  be  enlarged  nor  diminished  by 
a  State,  nor  can  any  State  prescribe  the  manner  in 
which  it  must  be  exercised,  and  the  consent  of  a 
State  can  never  be  a  condition  precedent  to  its 
exercise. 

In  case  of  criminal  prosecutions  the  Constitution 
limits  the  power  of  the  courts  to  trials  within  the 
district  where  the  crime  has  been  committed,  gives 
to  the  accused  the  right  to  be  confronted  with  the 
witnesses  against  him,  secures  for  him  the  compul- 
sory process  of  courts  to  obtain  witnesses  in  his 
favor,  and  compels  the  courts  to  assign  counsel  for 


THE  JUDICIAL   POWER.  121 

his  defence.  Under  this  provision  it  has  been 
held  by  the  United  States  courts,  that  no  persons, 
except  those  who  are  connected  with  the  army  or 
navy,  in  districts  where  the  courts  are  open  can 
be  charged  with  crime  and  tried  before  a  military 
commission. 

One  of  the  most  important  protections  to  indi- 
vidual liberty  embodied  in  the  Constitution  of 
the  United  States  is  in  the  seventh  article  of 
the  amendments,  which  provides  that  no  fact 
tried  by  a  jury  shall  be  reexamined  by  any 
court  in  the  United  States  otherwise  than  accord- 
ing to  the  rules  of  common  law.  This  secures 
citizens  of  the  United  States  against  vexatious 
proceedings  by  which  they  may  be  again  and  again 
harassed  on  the  same  subject  matter  of  complaint, 
after  the  matter  has  once  been  judicially  deter- 
mined. When  so  judicially  determined  both  the 
laws  of  the  States  and  the  procedures  of  the  courts 
of  the  United  States  provide  for  proper  appeals  by 
means  of  which  the  question  of  errors  may  be 
considered  and  determined,  and  thus  alone  the 
subject  matter  of  the  controversy  may  be  reviewed. 
When  determined,  however  erroneously,  by  a  court 
of  last  resort  or  by  a  competent  judicial  tribunal 
from  whose  judgment  no  appeal  has  been  taken, 
the  judgment  is  to  be  considered  final,  and  in  the 


122  CONSTITUTIONAL    HISTORY. 

interests  of  justice  not  to  be  shaken  nor  to  be  re- 
examined  by  any  department  or  any  special  court  or 
by  any  other  court,  as  between  the  same  parties. 

Trial  by  jury  is  so  often  referred  to  in  the  United 
States  Constitutions  that  what  is  a  trial  by  jury 
has  been  the  subject  of  judicial  examination,  and  it 
has  been  held  that  a  decision  by  a  jury  in  which 
three-fourths  of  a  jury  are  permitted  to  determine, 
is  not  such  a  trial  by  a  jury  ;  that  the  only  proper 
judgment  known  to  the  Constitution  that  can  be 
rendered  in  a  trial  by  a  jury,  is  that  which  requires 
unanimity  on  the  part  of  the  jury. 

The  eighth  amendment,  which  provides  that 
excessive  bail  shall  not  be  required,  nor  excessive 
fines  be  imposed,  nor  cruel  or  unusual  punishments 
be  inflicted,  has  been  held  to  apply  only  to  the  im- 
positions of  fines  and  punishments  by  United 
States  tribunals  for  offences  against  United  States, 
and  that  it  was  not  intended  to  protect  the  citizens 
of  the  several  States  from  the  penal  codes  of  such 
States,  although  the  fines  or  punishments  may  be 
considered  both  excessive  and  cruel. 

The  thirteenth,  fourteenth,  and  fifteenth  amend- 
ments, and  which  were  the  result  of  the  civil  war, 
had  for  their  object  the  abolishing  of  slavery,  the 
securing  to  all  persons  who  were  citizens  of  the 
United  States,  the  position  of  citizens  of  the  States 


THE  JUDICIAL   POWER.  123 

wherein  they  resided,  and  to  prevent  any  State 
from  not  giving  the  equal  protection  of  its  laws  to 
any  of  the  citizens  of  the  United  States  by  reason 
of  any  distinction  of  race,  color,  or  previous  con- 
dition of  servitude.  They  also  had  for  their  object 
to  abolish  the  apportionment  of  congressional 
seats  which  had  previously  been  based  upon  popu- 
lation unrepresented  as  citizens ;  the  slaves  in  the 
Southern  States,  counting  as  part  of  the  population 
prior  to  the  war  for  purposes  of  representation, 
although  treated  as  chattels  for  all  other  purposes, 
gave  to  the  South  an  undue  proportion  of  represen- 
tation as  compared  with  the  free  white  population 
of  the  North.  These  amendments  were  also  in- 
tended to  prevent  persons  from  becoming  officers 
of  the  United  States,  who  had  actually  engaged  in 
rebellion  unless  the  disability  was  removed ;  and 
finally  their  provisions  are  clear  and  unmistakable 
declarations  forever  to  prevent  the  questioning  of  the 
validity  of  the  public  debt  of  the  United  States  which 
had  been  created  to  suppress  the  rebellion,  and  on 
the  other  hand  forever  to  prevent  the  United 
States  from  assuming  to  pay,  or  the  States  from  ever 
permitting  the  payment  of,  any  debt  which  had  been 
created  or  incurred  in  aid  of  the  insurrection  or  re- 
bellion. Every  claim  for  loss  or  emancipation  of  any 
slaves,  or  losses  of  rebels  in  property,  are  forever 


124  CONSTITUTIONAL    HISTOEY. 

barred  by  these  amendments,  and  all  courts  have 
the  duty  imposed  upon  them  to  declare  all  such 
debts,  obligations  and  claims  illegal  and  void. 
Under  the  foregoing  amendments  it  has  been  held 
that  the  States  are  not  permitted,  under  public  edu- 
cational laws,  to  exclude  colored  children  from  its 
benefits  merely  because  of  their  African  descent, 
but  that  separate  schools  might  be  maintained 
wherein  such  children  may  be  educated  apart  from 
the  whites. 

Under  the  provision  that  the  rights  of  the  citi- 
zens of  the  United  States  shall  not  be  denied  or 
abridged  by  the  United  States  or  any  State  on 
account  of  race,  color,  or  previous  condition  of  ser- 
vitude, it  has  been  held  by  the  Supreme  Court  of 
the  United  States  that  the  right  of  suffrage  is  not 
thereby  conferred  upon  any  one  ;  that  it  simply  pre- 
vents the  States  from  giving  preference  to  one 
citizen  of  the  United  States  over  another  on  account 
of  race,  color,  or  previous  condition  of  servitude, 
and  that  it  leaves  the  States  as  free  as  theretofore 
to  regulate  the  right  to  vote,  but  prevents  them 
from  making  any  distinction  by  reason  of  race, 
color,  or  previous  condition. 

We  have  now  passed  in  review  the  leading 
articles  of  the  Constitution  of  the  United  States, 
and  the  main  questions  that  have  arisen  for  judicial 


THE   JUDICIAL   POWER.  125 

determination  under  them.  The  apprehension 
that  was  originally  felt  that  the  Supreme  Court  of 
the  United  States  would  not  faithfully  declare  the 
principles  of  the  Constitution,  and  that  it  either  on 
the  one  side  would  be  under  the  domination  of  the 
legislative  body,  or,  on  the  other,  attempt  to  domi- 
nate the  Legislature  by  improperly  declaring  such 
measures  unconstitutional  which  could  be  so 
declared  only  by  a  violent  misinterpretation  of  the 
fundamental  law,  has  proved  unfounded.  The  duty 
has  thus  far  been  performed  with  conscientious 
firmness,  and  so  thoroughly  do  the  people  of  the 
United  States,  including  its  Legislatures,  rely  upon 
the  fearless  performance  of  that  duty  on  the  part  of 
the  courts  of  last  resort,  that  when  an  objection  is 
made  in  a  legislative  body,  that  a  certain  provision 
in  a  proposed  law  is  of  doubtful  constitutionality, 
the  ready  answer  is  made  that  if  it  is  so  the  courts 
will  so  declare  it,  and  thus  eliminate  it  from 
the  law. 

"We  have  seen  that  the  Supreme  Court  of  the 
United  States  itself  is  established  by  the  Constitu- 
tion. The  power  to  establish  inferior  tribunals  was 
given  to  Congress.  The  Supreme  Court  having 
original  jurisdiction  in  two  classes  of  cases  only, 
viz.,  in  cases  affecting  ambassadors,  other  public 
ministers  and  consuls,  and  in  cases  in  which  the 


126  CONSTITUTIONAL    HISTOEY. 

State  is  a  party,  Congress  could  not  vest  any 
portion  of  the  judicial  power  of  the  United  States 
except  in  the  courts  ordained  and  established  by 
itself.  The  appointment  is  vested  by  the  Constitu- 
tion in  the  President,  but  the  organization  of  these 
inferior  tribunals  was  made  by  the  Judiciary  Act  of 
1789.  This  act  repeats  the  language  of  the  Consti- 
tution of  the  United  States  in  creating  the  Supreme 
Court,  and  extends  the  power  of  the  court  so  as  to 
include  the  right  to  issue  writs  of  prohibition  to 
the  district  courts  when  proceeding  as  a  court  of 
admiralty  and  maritime  jurisdiction,  and  writs  of 
mandamus  in  cases  warranted  by  the  principles 
and  usages  of  law  to  any  courts  appointed  by  the 
authority  of  the  United  States  or  to  persons  hold- 
ing office  under  the  authority  of  the  United  States, 
where  a  State  or  an  ambassador  or  other  public 
minister,  or  a  consul  or  vice-consul  is  a  party.  It 
defines  the  appellate  jurisdiction  of  the  Supreme 
Court  to  be  by  appeal,  or  writ  of  error  from  the 
final  judgments  of  circuit  courts  or  district  courts 
actinw  as  circuit  courts  ;  in  civil  actions  brought 

O  ° 

there  by  original  process  or  removed  there  from 
the  courts  of  the  several  States  ;  all  final  judgments 
in  the  Circuit  Court  in  civil  causes  removed 
there  from  any  district  court  by  appeal  or  writ  of 
error  where  the  amount  in  dispute  exceeds  two 


THE   JUDICIAL  POWER.  127 

thousand  dollars  ;  also  in  cases  of  equity  where  the 
amount  in  dispute  exceeds  two  thousand  dollars ; 
all  prize  cases  where  the  matter  in  dispute  exceeds 
the  sum  of  two  thousand  dollars,  an  appeal  lies  to 
the  Supreme  Court  from  the  judgments  of  the  dis- 
trict courts.  Likewise  the  Supreme  Court  is  to 
entertain  appeals  of  prize  causes  which  were 
depending  in  the  Circuit  Courts.  It  is  provided 
that  if  the  judges  are  divided  in  opinion  in  any 
Circuit  Court,  the  point  shall  be  certified  to  the 
Supreme  Court,  and  its  decision  or  order  in  the 
premises  shall  be  remitted  back  to  the  Circuit 
Court  and  there  entered  of  record.  An  appeal  is 
provided  by  the  act  of  1863  from  final  judgments 
or  decrees  of  the  District  of  Columbia  to  the 
Supreme  Court  of  the  United  States.  By  subse- 
quent legislation  under  which  the  Court  of  Claims 
was  created,  appeals  were  provided  to  the  Supreme 
Court  of  the  United  States  from  decisions  of  the 
Court  of  Claims  when  such  decisions  are  adverse 
to  the  United  States  in  every  case,  and  where  ad- 
verse to  the  claimants  when  the  amount  in  contro- 
versy exceeds  three  thousand  dollars.  It  was 
further  provided  by  the  Judiciary  Act  that  in  case 
of  a  final  judgment  or  decree  in  any  suit  in  the 
highest  court  of  a  State  in  which  a  decision  in  the 
suit  could  be  had,  where  is  drawn  in  question  the 


128  CONSTITUTIONAL    HISTORY. 

validity  of  a  treaty  or  statute  of,  or  an  authority 
exercised  under,  the  United  States,  and  the  decision 
is  against  its  validity,  or  where  is  drawn  in  ques- 
tion the  validity  of  a  statute  or  an  authority 
exercised  under  any  statute,  on  the  ground  of  being 
repugnant  to  the  Constitution,  treaties  or  laws  of 
the  United  States,  and  the  decision  is  in  favor  of 
its  validity,  or  where  any  title,  right,  privilege  or 
immunity  is  claimed  under  the  Constitution,  or 
any  treaty  or  statute  of,  or  commission  held  or 
authority  exercised  under  the  United  States,  and 
the  decision  is  against  the  title,  right,  privilege  or 
immunity,  especially  a  set-off  or  claim  by  either 
party  under  such  Constitution,  treaty,  statute, 
commission  or  authority,  in  such  case  the  final 
judgment  or  decree  may  be  reexamined,  and  re- 
versed or  affirmed  in  the  Supreme  Court  of  the 
United  States  on  a  writ  of  error,  and  the  writ  shall 
have  the  same  effect  as  if  the  judgment  or  decree 
complained  of  had  been  rendered  or  passed  upon 
in  a  court  of  the  United  States,  and  the  proceed- 
ings upon  the  reversal  shall  be  the  same  except 
that  the  Supreme  Court  may  in  its  discretion  pro- 
ceed to  a  final  decision  of  the  cause  and  award 
execution,  or  remand  the  same  to  the  court  from 
which  it  was  removed  ;  and  the  Supreme  Court  may 
reaffirm,  reverse,  modify  or  affirm  the  judgment  or 


THE  JUDICIAL   POWER.  129 

decree  of  such  State  court,  and  may  award  execu- 
tion or  remand  the  same  to  the  court  from  which  it 
was  removed  by  the  writ. 

This  was  a  most  important  addition  to  and  clear 
definition  of  the  powers  of  the  Supreme  Court,  for 
without  it  State  courts,  when  once  having  acquired 
jurisdiction  of  a  case,  the  same  not  having  been 
removed  or  not  being  removable  under  the  law  to 
the  federal  courts,  would  have  had  the  final  power 
to  determine  upon  the  interpretation  of  an  act  of 
Congress  or  of  a  treaty,  or  of  the  application  of 
the  Constitution  to  any  particular  case  ;  and  how- 
ever strenuously  a  litigant  might  have  invoked  the 
protection  of  the  Constitution  of  the  United  States 
against  the  wrong  which  was  attempted  to  be  done 
him,  and  however  correct  his  views  might  have 
been,  it  would  still  have  been  in  the  power  of  the 
court  to  have  denied,  as  against  a  statute  of  the 
State,  any  relief,  and  wilfully  to  have  shut  its  eyes 
to  the  .protection  which  was  intended  to  be  given 
by  the  Constitution  of  the  United  States  to  the 
litigant,  and  its  decision  would  have  been  final, 
but  for  the  fact  that  the  Judiciary  Act  secures  to 
every  litigant  the  right  to  spread  upon  the  record 
the  questions  applicable  to  his  case,  arising  under 
the  act  of  Congress  or  under  the  Constitution  of 

the  United  States,  and  thus  open  to  himself  an 
6* 


130  CONSTITUTIONAL  HISTORY. 

appeal  to  the  court  of  last  resort  of  the  United 
States.  Not  only  was  this  provision  necessary  for 
the  purpose  of  securing  the  supremacy  of  the  Con- 
stitution and  the  acts  of  Congress  thereunder  over 
the  Constitutions  and  laws  of  the  several  States, 
but  it  was  also  necessary  for  the  purpose  of  secur- 
ing uniformity  of  decisions  and  of  interpretation 
of  the  Constitution  of  the  United  States  itself. 

A  vast  number  of  questions  have  arisen  under 
this  power  of  appeal  to  the  Supreme  Court  of  the 
United  States,  and  the  business  of  that  court  became 
so  encumbered  by  reason  of  the  numerous  appeals 
from  State  courts  on  the  mere  suggestions  on  the 
record  of  a  United  States  question,  that  it  became 
necessary  for  the  court,  somewhat  arbitrarily,  to 
limit  the  appeals  in  such  cases,  and  to  limit  the 
inquiry  arising  from  such  an  appeal  from  a  State 
court  to  the  one  question,  "Is  there  a  United 
States  question  involved,  and  if  so  has  it  been 
properly  decided  by  the  State  courts  ? "  The 
Supreme  Court  of  the  United  States  have  there- 
fore declared  that  when  an  appeal  is  made  from, 
or  writ  of  error  taken  to  a  court  of  last  resort  of 
a  State,  they  will  not  reexamine  as  an  appellate 
court  the  correctness  of  the  decision  of  the  court 
of  last  resort  upon  any  other  point  than  the  consti- 
tutional one  or  one  arising  under  the  act  of  Con- 


THE  JUDICIAL   POWEE.  131 

gress ;  so  that  if  they  should  come  to  the  conclusion 
that  the  case  was  correctly  decided  on  the  consti- 
tutional question,  however  erroneously  the  decision 
may  have  been  arrived  at  on  questions  which  arose 
entirely  under  the  law  of  the  State  independent  of 
the  Constitution  of  the  United  States  and  of  the 
United  States  laws,  they  will  allow  the  decision  to 
stand.  This  action  of  the  Supreme  Court  prevents 
appeals  to  the  Supreme  Court  of  the  United  States 
being  taken  by  simply  suggesting  a  constitutional 
question  in  order  to  have  the  advantage  of  that 
court's  reexamination  of  the  whole  record,  and 
if  error  be  found  to  send  it  back  to  be  cor- 
rected. 

In  cases,  however,  where  the  State  itself  is  a  party 
or  so  directly  interested  that  the  bias  of  the  State 
court  may  be  supposed  to  be  in  favor  of  the  State's 
views  as  against  the  United  States  Constitution  or 
the  act  of  Congress,  then  the  court  will  look  into  the 
record  sufficiently  to  see  whether  the  decision  upon 
other  points  was  not  merely  colorable,  and  not  deem 
itself  concluded  by  the  facts  as  found  by  the  court 
below  ;  in  other  words,  whether  the  appellate  juris- 
diction of  the  Supreme  Court  applies  in  such  a 
case  or  not  is  not  to  be  determined  for  the  Supreme 
Court  by  the  findings  of  fact  on  the  part  of  the 
lower  court  which  would  preclude  its  jurisdiction, 


132  CONSTITUTIONAL   HISTORY. 

but  the  Supreme  Court  of  the  United  States  will 
itself  examine  into  facts  sufficiently  to  ascertain 
whether  or  not  its  jurisdiction  attaches. 

The  Judiciary  Act  further  provides  for  writs  of 
ne  exeat  by  the  Supreme  Court  and  circuit  judges, 
and  of  writs  of  injunction  by  the  supreme,  circuit 
and  district  judges  ;  a  limitation  upon  the  power  to 
issue  writs  of  injunction  to  State  courts  except  in 
cases  of  bankruptcy  ;  and  for  the  sake  of  uniformity 
in  the  various  districts  and  circuits  of  the  United 
States,  the  laws  of  the  several  States,  except  where 
the  Constitution  of  the  United  States  and  statutes 
of  the  United  States  otherwise  require,  are  re- 
garded as  rules  of  decision  at  common  law  in  the 
courts  of  the  United  States  where  they  apply ;  and 
a  recent  Judiciary  Act  has  made  even  the  forms 
of  procedure  in  common  law  proceedings  of  the 
several  State  courts  in  the  various  districts  where 
the  courts  sit,  the  forms  of  pleading  and  procedure 
of  the  United  States  courts. 

Provision  is  made  to  prevent  injustice  by  the 
dragging  of  persons  out  of  the  district  in  which  they 
reside,  by  compelling  plaintiffs,  residents  of  the  same 
State,  to  commence  their  actions  within  the  district 
where  the  defendant  resides,  and  all  parties  are 
permitted  in  the  United  States  courts  to  manage 
their  own  cases  personally  or  by  counsel.  The 


THE  JUDICIAL   POWEE.  133 

Judiciary  Act  of  1789  makes  ample  provision  for  the 
issue  of  writs  of  habeas  corpus,  empowering  and  com- 
pelling all  judges  of  the  United  States  courts  to  issue 
this  writ  of  privilege  ;  it  gives  an  elaborate  and  de- 
tailed procedure  for  the  return  of  the  writ  and  the 
adjudications  thereupon,  and  appeals  to  circuit 
courts  and  Supreme  Court  of  the  United  States,  and 
stays  all  proceedings  on  the  part  of  the  State  courts 
pending  the  consideration  of  the  habeas  corpus  by  the 
court  below  and  the  proceedings  on  appeal.  Except 
in  the  Court  of  Claims  the  United  States  cannot 
involuntarily  be  made  a  party  in  a  proceeding  at 
law.  The  jurisdiction  of  the  Court  of  Claims,  as  has 
been  stated,  is  confined  to  claims  founded  upon  any 
law  of  Congress  or  upon  any  regulation  of  an  execu- 
tive department,  or  upon  any  contract  express  or 
implied  with  the  Government  of  the  United  States, 
and  all  claims  which  may  specially  be  referred  to  it 
by  either  House  of  Congress ;  all  set-offs,  counter- 
claims and  claims  for  damages,  whether  liquidated 
or  unliquidated  on  the  part  of  the  Government  of 
the  United  States  against  any  persons  making  claim 
against  the  Government  in  the  courts. 

By  the  acts  of  1863,  1864,  and  1868,  the  large 
claims  arising  from  the  seizure  of  cotton  in  the 
Southern  States  towards  the  close  of  the  rebellion, 
were  specially  referred  to  the  Court  of  Claims  for 


134  CONSTITUTIONAL   HISTOEY. 

action.  The  lobbies  of  the  Houses  of  Congress 
prior  to  the  organization  of  the  Court  of  Claims 
had  been  so  beset  by  claimants  that  it  was  found 
necessary  to  organize  a  special  tribunal  to  take 
into  consideration  some  of  the  cases  which  prior  to 
that  time  were  constantly  presented  to  Congress. 
As  the  court,  however,  is  one  of  limited  jurisdiction 
and  as  numerous  cases  of  claims  against  the  United 
States  Government  arise,  of  which  the  court  has 
no  jurisdiction,  the  committees  of  Congress  are  still 
besieged  by  claimants,  and  appropriations  are 
annually  made  by  acts,  arising  from  reports  of 
committees  wherein  such  committees  sit  as  a  court 
of  judicature  determining  upon  contested  claims 
against  the  United  States.  Such  a  committee  lacks 
the  dignity  and  power  of  an  ordinary  court  of  jus- 
tice, is  subjected  to  influences  which  courts  of 
justice  are  not  ordinarily  subjected  to,  and  has  not 
the  machinery  of  a  trained  bar  and  regular  sessions 
and  continuous  investigations  by  which  the  truth 
is  ascertained  in  ordinary  courts  of  justice.  Hence 
meritorious  claims  are  overlooked  and  meretricious 
ones  are  so  often  paid  through  the  instrumentality 
of  Congress,  that  the  question  has  recently  been 
considerably  agitated  whether  it  would  not  be 
wiser  to  have  the  sovereignty  of  the  United  States 
Government  sufficiently  unbend  as  to  allow  it  to  be 


THE  JUDICIAL   POWEK.  135 

sued  in  its  own  courts  in  the  same  manner  as  a 
private  litigant. 

Both  before  and  shortly  after  the  adoption  of  the 
Constitution  it  was  subjected  to  very  severe  criticism 
on  the  ground  that  it  did  not  contain  a  Bill  of  Bights. 
A  careful  examination  of  the  first  twelve  amendments 
will  show  that  they  were  mainly  passed  to  satisfy 
that  objection.  The  objection  that  was  urged  to 
their  adoption  was  that  they  were  unnecessary;  that 
the  Constitution  begins  with  the  declaration,  ""We, 
the  people  of  the  United  States,  to  secure  the  bles- 
sings of  liberty  to  ourselves  and  our  posterity,  do 
ordain  and  establish  this  Constitution  for  the 
United  States  of  America ; "  that  as  the  very  pur- 
pose of  the  Constitution  was  to  secure  the  bles- 
sings of  liberty  this  declaration  was,  as  Alexander 
Hamilton  thought,  a  better  recognition  of  popular 
rights  than  that  which  is  contained  in  the  elaborate 
declaration  of  rights  in  every  State  Constitution. 
It  was,  however,  thought  wiser  to  direct,  enlighten 
and  quicken  public  opinion  as  to  the  rights  which 
were  intended  to  be  reserved  to  the  people,  and 
which  were  not  intended  to  be  delegated  to  the 
general  Congress,  that  they  be  in  terms  so  specifi- 
cally declared  that  any  infraction  thereof  would  be 
immediately  recognized  as  unconstitutional  and 
void.  The  first  amendment,  which  related  to  free- 


136  CONSTITUTIONAL  HISTOEY. 

dom  of  religion  "  was  enacted  under  the  solemn 
consciousness,"  says  Story,  "  of  the  dangers 
from  ecclesiastical  ambition,  the  bigotry  of  spiritual 
pride,  and  the  intolerance  of  sects,  and  it  was 
therefore  deemed  advisable  to  exclude  from  the 
national  Government  all  power  to  act  upon  the 
subject.  One  of  the  reasons,  too,  for  the  necessity 
and  wisdom  of  this  course  was  the  fact  of  the  dif- 
ferent religious  complications  of  the  majorities 
in  different  States.  In  some  of  the  States  the 
Catholics  predominated ;  in  others,  Episcopalians  ; 
in  others,  Presbyterians  ;  in  others,  Quakers  ;  and 
any  recognition  on  the  part  of  the  Government  of 
any  religion,  except  in  the  vaguest  possible  sort  of 
way,  would  have  given  rise  to  considerable  amount 
of  jealousy  and  bickering." 

The  same  amendment  contains  the  security  for 
freedom  of  the  press  and  of  speech.  It  is  necessary 
to  say  that  this  security  was  not  intended  to  give 
to  any  citizen  an  absolute  right  to  speak  or  write 
or  print  whatever  he  saw  fit  without  personal 
responsibility  to  the  person  aggrieved  thereby. 
Every  man  was  intended  to  have  the  right  to  speak 
and  the  right  to  print  his  opinions  upon  any  sub- 
ject whatever  without  any  prior  restraint  by  way 
of  censorship  ;  but  if  he  injure  any  other  person  in 
his  rights  of  person,  property  or  reputation,  he  is 


THE   JUDICIAL   POWER.  137 

subject  to  civil  and  criminal  prosecution  for  such 
injury  precisely  as  lie  would  be  for  any  other  injury 
to  person  or  property.  "  Without  such  limitation," 
says  Story,  "  it  might  become  the  scourge  of  the 
republic."  The  question  how  far  the  Government 
has  the  right  to  interfere  with  the  press  under  the 
security  thus  afforded,  and  where  licentiousness 
begins  and  liberty  ends,  is  one  which  has  often 
been  mooted,  but  has  not  yet  found  a  satisfactory 
solution.  There  is,  however,  much  force  in  the 
contention  that  if  the  Government  is  to  determine 
at  any  time  what  is  liberty  and  what  is  license, 
then  the  constitutional  provision  is  but  a  tissue  of 
empty  words,  because  every  government,  however 
autocratic,  admits  of  certain  strictures  ;  the  ques- 
tion is  simply  as  to  where  the  line  should  be  drawn. 
The  sounder  doctrine  in  the  United  States  now 
seems  to  be  this  :  that  the  Government  cannot  ex- 
ercise a  restraint  upon  publications  ;  in  other  words, 
no  censorship  of  the  press  can  be  exercised  under 
the  constitutional  guaranty  that  men  may  speak  and 
write  freely  what  they  please  ;  and  however  danger- 
ous and  bad  the  doctrine  may  be  which  is  being 
advocated  or  promulgated  by  the  psess,  it  is  not 
within  the  power  of  the  Government  to  prevent  its 
publication.  On  the  other  hand  if  the  press  at- 
tacks private  rights,  calumniates  individual  char- 


138  CONSTITUTIONAL   IIISTOEY. 

acter,  or  destroys  domestic  peace,  it  is  responsible 
to  the  individual  aggrieved  both  by  criminal  in- 
dictment for  libel  and  by  private  prosecution  for 
libel  for  the  injury  thus  sustained.  And  the  equity 
courts  have  power  to  restrain  the  intended  pub- 
lication of  articles  if  they  are  injurious  to  private 
rights,  and  are  not  merely  the  discussion  of  a 
public  question.  Whether  the  United  States  Gov- 
ernment can  be  forced  to  carry  through  the  mails 
literature  which  is  confessedly  immoral,  is  a  ques- 
tion which  has  not  yet  received  final  adjudication. 
Upon  the  instigation  of  the  New  York  Society  for 
the  Suppression  of  Vice,  the  object  of  which  is 
mainly  directed  against  immoral  publications,  the 
United  States  Government  has  refused  to  carry  cer- 
tain libidinous  and  clearly  immoral  sheets.  This 
refusal  is  of  course  destructive  of  the  business  of 
the  publications,  and  as  the  refusal  was  generally 
accompanied  by  declining  to  redeliver  the  sheets 
in  question,  it  practically  amounted  to  a  confisca- 
tion of  private  property.  In  the  lower  courts  this 
course  on  the  part  of  the  Government  has  been 
held  to  be  constitutional  and  proper,  as  it  was  in 
part  the  exercise  of  police  surveillance  and  super- 
vision, and  no  man's  right  to  speak  or  write  what 
he  pleased  was  impaired  by  the  refusal  of  the  Gov- 
ernment to  carry  such  writings.  The  argument, 


THE  JUDICIAL   POWER.  139 

however,  against  this  position  is  that  as  the  general 
Government  through  its  revenue  laws  maintains  a 
postal  department  to  which  all  are  supposed  equal- 
ly to  contribute,  to  deny  the  facility  of  the  postal 
department  is  to  impose  in  fact  a  punishment  for  a 
particular  writing,  and  is  thus  an  impairment  of 
the  freedom  to  publish,  which  was  intended  to  be 
secured  by  the  Constitution.  The  question  will 
probably  receive  final  adjudication  by  the  Supreme 
Court  before  long.  During  the  war  of  the  rebel- 
lion, 1861-1865,  several  of  the  metropolitan  papers 
were  imposed  upon  by  a  forged  proclamation  of 
President  Lincoln  calling  for  an  additional  draft  of 
four  hundred  thousand  men,  to  repair  the  disasters 
to  the  Union  arms.  This  pretended  proclamation 
greatly  intensified  the  feeling  of  despondency  that 
had  already  taken  possession  of  the  people  in  the 
North  at  that  particular  juncture  of  the  war.  The 
newspapers  publishing  the  proclamation  were  or- 
gans of  the  Democratic  party,  and  were  therefore 
subjects  of  suspicion  on  the  part  of  the  general  Gov- 
ernment. They  were  suspended  by  military  orders, 
and  a  military  force  took  possession  of  their  prem- 
ises and  stopped  for  a  short  time  the  publication 
of  these  journals.  The  question  of  the  right  or 
authority  of  the  Government  in  time  of  war  so  to 
suspend  a  paper  was  never  judicially  raised.  The 


140  CONSTITUTIONAL  HISTORY. 

order  suspending  them  was  recalled  on  the  discov- 
ery by  the  Executive  Department  of  the  Govern- 
ment that  the  mistake  was  an  innocent  one  and 
that  it  was  not  intended  wilfully  to  embarrass  the 
Government  in  its  military  operations,  as  it  was 
wholly  the  consequence  of  an  imposition.  Under 
the  authority  of  the  case  known  as  the  Milligan  case, 
decided  in  1866,  we  are  bound  to  assume  that  the 
Supreme  Court  of  the  United  States  would  'have 
declared  such  a  suspension  illegal  and  unwarranted 
by  the  Constitution  at  any  point  where  the  civil 
tribunals  were  in  full  force,  even  in  time  of  war. 
At  the  theatre  of  war,  of  course,  a  different  rule 
prevails ;  but  because  a  nation  is  at  war  every  part 
thereof  is  not  necessarily  under  the  domination  of 
the  drum-head  court-martial. 

The  right  of  the  people  peaceably  to  assemble 
and  petition  the  Government  for  the  redress  of 
grievances  is  one  which  was  borrowed  from  the 
Declaration  of  Eights  in  England,  with  very  little 
change  in  phraseology.  No  judicial  opinions  have 
ever  been  given  upon  this  clause,  because  the  right 
has  never  been  denied. 

—"The  right  of  the  States  to  have  a  militia,  and  the 
right  of  the  people  to  keep  and  bear  arms,  is  the 
subject  of  the  following  amendment.  This  is  also  to 
be  found  in  the  Bill  of  Eights  of  1688.  That  this 


THE  JUDICIAL   POWEK.  141 

provision  simply  means  arms  necessary  for  the 
militia  and  not  to  secure  to  each  man  the  right  to 
keep  a  private  arsenal,  goes  without  saying.  That 
no  soldier  shall  in  time  of  peace  be  quartered  in 
any  house  without  the  consent  of  the  owner  was  to 
prevent  the  billeting  of  soldiers  in  time  of  peace 
upon  the  people.  This  amendment  has  in  practice 
been  found  to  be  unnecessary.  The  army  of  the 
United  States  in  time  of  peace  is  so  small  and  the 
public  property  of  the  United  States  so  vast  that 
there  is  no  necessity  ever  to  billet  soldiers  upon 
the  inhabitants.  "•The  right  of  the  people  to  be 
secure  in  their  persons,  houses,  papers  and  effects 
against  unreasonable  searches  and  seizures,  and  to 
prevent  such  searches  and  seizures,  except  upon 
due  warrant  issued  by  a  court  of  justice,  is  one 
which  would  seem  to  be  essential  for  the  preserva- 
tion of  personal  liberty,  and  has  been  twice  assailed 
in  the  United  States,  once  under  the  Alien  and 
Sedition  laws  during  the  administration  of  Jeffer- 
son, and  the  second  time  during  the  war  of  the  re- 
bellion by  the  State  and  War  Departments.  In 
both  cases  the  Executive  Departments  sought  ref- 
uge under  the  principle  of  saliis  populi  svprema  kx  ; 
that  the  country  was  in  peril  and  that  it  was  neces- 
sary to  disregard  a.  single  constitutional  provision 
for  the  purpose  of  saving  the  whole  structure. 


142  CONSTITUTIONAL   HISTOEY. 

The  revenue  laws  of  the  United  States  contain 
many  clauses  of  questionable  authority  by  which 
revenue  officers  are  entitled  to  search  and  seize 
books  and  papers  of  merchants  and  private  citizens, 
and  the  question  is  not  yet  fully  determined  whether 
such  inquisitorial  proceedings  and  seizures  are  not, 
both  in  spirit  and  in  letter,  repugnant  to  this  pro- 
vision of  the  Constitution. 

That  excessive  bail  shall  not  be  required,  nor  ex- 
cessive fines  imposed,  nor  cruel  or  unusual  punish- 
ments inflicted,  is  again  a  transcript  of  a  clause  of 
the  Bill  of  Eights  of  the  Revolution  of  1688.  This 
clause  operates  as  a  restriction  upon  the  powers  of 
the  United  States  courts  alone,  and  not  upon  the 
State  courts. 

The  various  amendments  have  from  time  to  time 
been  the  subject  of  judicial  decision,  but  the  most 
important  of  the  amendments  are  the  last  two  of 
the  first  eleven,  which  are  to  the  effect  that  the 
enumeration  in  the  Constitution  of  certain  rights 
shall  not  be  construed  to  deny  or  disparage  others 
retained  by  the  people.  Were  it  not  for  this  clause 
it  might  have  been  argued  with  considerable  plausi- 
bility, that  as  the  people  saw  fit,  by  amendments, 
to  incorporate  into  the  Constitution,  a  Bill  of  Eights, 
whatever  they  failed  to  preserve  or  mention  they 
ceased  to  have.  This  provision  was  made  to  guard 


THE   JUDICIAL   POWER.  143 

against  the  evil  suggested  in  the  Federalist  when  it 
gave  a  reason  why  the  Constitution  had  not  given 
a  Bill  of  flights,  because  the  reservation  of  powers 
without  a  Bill  of  Rights  was  larger  than  the  reser- 
vation of  powers  with  a  Bill  of  Rights. 

The  next  and  last  amendment  of  the  first  eleven 
is  that  the  powers  not  delegated  to  the  United 
States  by  the  Constitution,  nor  prohibited  to  it  by 
the  Constitution,  are  reserved  to  the  States  respec- 
tively or  to  the  people.  This  is  a  rule  of  interpre- 
tation of  the  Constitution  which  probably  would 
have  been  followed  by  the  courts  without  this  ex- 
press declaration.  The  Constitution  is  an  instru- 
ment of  limited  and  enumerated  powers,  and, 
therefore,  whatever  power  is  not  given  is  withheld; 
but  the  declaration  has  been  productive  of  much 
good,  and  took  the  matter  of  whether  the  United 
States  is  a  government  of  merely  delegated  powers 
out  of  the  range  of  controversy. 

One  great  step  in  advance,  however,  must  here 
be  noted  between  the  old  Articles  of  Confederation 
and  the  Constitution  of  the  United  States,  inas- 
much as  here  the  expression  is  "  the  powers  not 
delegated  to  the  United  States  by  the  Constitu- 
tion," and  in  the  Articles  of  Confederation  it  was 
"  powers  not  expressly  delegated  or  prohibited." 
Therefore,  as  a  large  proportion  of  the  powers  ex- 


144  CONSTITUTIONAL   HISTOEY. 

ercised  by  Congress  arises  from  powers  which  it 
derives  by  necessary  implication  from  the  powers 
expressly  conferred,  the  United  States  government 
differs  in  that  respect  from  the  Government  under 
the  Articles  of  Confederation,  inasmuch  as  that 
had  no  power  which  had  not  been  specially  con- 
ferred, and  therefore  had  no  powers  by  implication. 
Hence  it  was  crippled  at  every  turn  because  the 
organic  law  which  constituted  it  did  not  in  express 
terms  confer  the  right  to  pass  a  particular  bill. 


CHAPTEK  V. 

THE     POST-CONSTITUTIONAL     HISTORY    OF    THE    UNITED 
STATES. 

THE  foregoing  chapters  give  a  succinct  state- 
ment of  the  provisions  of  the  Constitution  and 
of  the  leading  questions  that  have  been  decided 
under  that  instrument.  An  understanding,  how- 
ever, of  the  institutional  history  of  the  United 
States  would  be  incomplete  if  the  political  and 
constitutional  questions  entering  into  politics  from 
the  timo  of  the  adoption  of  the  Constitution  down 
to  the  present  day  were  not  sketched,  in  however 
superficial  and  rapid  a  form.  The  political  divis- 
ions of  parties  in  the  United  States  unquestionably 
exerted  a  very  strong  influence  upon  judicial  de- 
cisions and  the  interpretation  of  the  provisions  of 
the  Constitution  of  the  United  States.  There  is  an 
unconscious  influence  exercised  by  public  opinion 
upon  the  minds  of  those  who  are  called  upon  to 
decide  finally  constitutional  questions,  which  is 
neither  corrupt  nor  sinister,  but  which  causes  a 

written  constitution  to  approximate  more  closely 
7  145 


146  CONSTITUTIONAL    HISTORY. 

to  an  unwritten  one,  like  that  of  England,  by  mak- 
ing the  written  word  bend  and  yield  to  the  neces- 
sities of  the  hour,  as  a  large  and  influential  majority 
may  determine,  and  that  without  constitutional 
amendment.  The  limits  of  this  book  do  not  per- 
mit so  analytical  a  survey  of  the  whole  field  as  to 
show  in  detail  the  influence  and  pressure  of  public 
opinion  upon  the  Supreme  Court  of  the  United 
States  and  the  gradual  yielding  of  the  court  to  the 
pressure  of  that  opinion,  or  the  influence  of  the 
opinions  held  by  the  members  of  the  court  on  po- 
litical subjects  upon  their  decisions  as  a  court. 
The  reader  must  make  those  applications  for  him- 
self when  the  story  of  the  political  parties  in  the 
United  States  will  have  been  told. 

It  will  be  remembered  that  the  Constitution  came 
into  existence  under  an  almost  irresistible  pressure 
of  necessity  either  to  disestablish  the  Government 
of  the  United  States  and  to  leave  each  State  free  as 
an  independent  sovereignty  to  make  such  alliances 
as  it  might  see  fit — because  the  Articles  of  Confede- 
ration proved  but  a  rope  of  sand — or  to  organize  a 
Government  clothed  with  sufficient  power  to  enforce 
obedience  to  its  laws  ;  with  power  to  assess  and  col- 
lect revenue,  with  power  to  make  war,  treaties  of 
peace  and  foreign  alliances,  and  having  both  towards 
the  States  and  as  against  foreign  nations  all  the  attri- 


THE  POST-CONSTITUTIONAL   HISTORY.        147 

butes  of  sovereignty.  The  jealousy  of  the  States, 
however,  which  caused  the  principal  difficulty  under 
the  Articles  of  Confederation,  and  the  ambition  of 
local  State  leaders,  who  were  apprehensive  that 
the  formation  of  the  Constitution  of  the  United 
States  would  be  destructive  of  their  influence,  and 
who  opposed  therefore  the  Constitution  after  its 
adoption,  survived  sufficiently  to  cause  within  an 
early  period  thereafter  a  renewal  of  hostility  to  the 
pact,  no  longer  in  the  form  of  open  opposition  to 
the  Union,  but  under  the  form  of  urging  a  strict 
and  limited  construction  of  the  powers  conferred 
upon  the  federal  Government,  and  to  make  an  ex- 
aggerated claim  of  sovereignty  on  the  parts  of  the 
States. 

Under  the  Constitution  of  the  United  States 
"Washington  was  unanimously  elected  first  Presi- 
dent, and  he  so  continued  for  the  period  of  eight 
years,  and  probably  would  have  continued  to 
hold  the  office  during  the  period  of  his  life,  if  he 
had  not  voluntarily  seen  fit  to  withdraw  at  the  end 
of  his  second  term,  presumably  for  the  purpose  of 
creating  an  example  to  limit  the  Presidential  term, 
so  that  thereafter  there  should  be  a  sufficiently 
frequent  change  of  the  Executive  head  of  the 
Government  to  prevent  future  elections  from 
being  mere  idle  forms,  and  also  to  prevent  a  con- 


148  CONSTITUTIONAL   HISTOKY. 

solidation  of  power  in  the  hands  of  the  Executive, 
which  long  continuance  in  office  would  inevitably 
bring  about. 

During  Washington's  administration  differences 
of  opinion  were  held  largely  in  abeyance.  The 
commanding  personal  dignity  of  Washington  and 
the  complete  confidence  reposed  in  him  by  the  body 
of  the  people,  his  unimpeachable  personal  character 
and  his  remarkable  good  sense  and  moderation, 
gave  to  the  country  during  such  first  eight  years 
that  peace,  quiet,  and  freedom  from  political  agita- 
tion which  were  above  all  things  needful  for  the 
purpose  of  establishing  the  Government,  rehabili- 
tating its  financial  condition  which  had  become 
almost  hopeless  under  the  Confederation,  placing 
foreign  relations  upon  a  sound  footing,  and  allowing 
the  people  of  the  United  States  and  its  Government 
a  tranquil  growth  unharassed  by  internal  con- 
flict. 

The  adoption  itself  of  the  Constitution  was  of 
course  accompanied  with  considerable  opposition. 
But  ten  States  had  adopted  the  Constitution  at  the 
time  of  the  inauguration  of  the  Government,  and  in 
some  of  the  States  the  Constitution  was  adopted  by 
but  slight  majorities.  There  was  naturally,  there- 
fore, after  the  Constitution,  as  well  as  before,  two 
parties — Federalist  and  Anti-Federalist — the  lines 


THE   POST-COISTSTITUTIONAL   HISTORY.        149 

of  which  were,  on  the  whole,  retained  after  the 
Government  was  inaugurated.  The  Anti-Federalist 
party  claimed,  after  the  Constitution  was  adopted, 
as  strong  a  loyalty  to  the  government  as  the  Fed- 
eralist party  itself,  but  the  form  of  opposition  it 
then  adopted  was  to  limit  the  general  Government 
to  the  strict  letter  of  its  powers. 

The  first  Congress  met  in  the  City  of  New  York. 
The  first  questions  that  engrossed  its  attention 
after  the  adoption  of  the  Constitution  were  the 
organization  of  the  Judiciary,  the  revenue  diities 
on  imports  and  exports,  a  system  of  taxation  for 
the  replenishment  of  the  Treasury  to  carry  on  the 
necessary  purposes  of  government.  The  discussion 
in  Congress  on  the  tariff  laws  shows  that  at  the  very 
outset  the  question  of  using  the  tariff  as  a  means  of 
protecting  "  infant  "  manufacturers  was  one  which 
entered  into  the  method  of  formulating  the  legisla- 
tion as  part  of  the  system.  Fitzsimmons,  of  Penn- 
sylvania, was  mainly  the  author  of  the  first  tariff  list. 
James  Madison,  although  he  owned  himself,  as  he 
said  in  the  debate,  "  the  friend  of  a  very  free  sys- 
tem of  commerce,  and  that  if  industry  and  labor  are 
left  to  take  their  own  course,  they  will  generally  be 
directed  to  those  objects  which  are  most  productive, 
and  that,  in  a  manner  more  conservative  and  direct 
than  the  wisdom  of  the  most  enlightened  Legislature 


150  CONSTITUTIONAL   HISTORY. 

could  point  out,"  nevertheless  conceded  (a  concession 
which,  by  the  light  since  thrown  upon  these  ques- 
tions by  scientific  research,  appears  to  have  been 
an  error)  that  as  to  the  navigation  element  of  the 
tariff,  if  American  citizens  were  left  without  restraint, 
and  the  law  made  no  discrimination  between  vessels 
owned  by  citizens  and  those  owned  by  foreigners, 
while  other  nations  made  such  discrimination,  such 
a  policy  would  go  to  exclude  American  shipping 
from  foreign  ports.  He  conceded  the  necessity  that 
every  nation  should  have  in  itself  the  means  of  de- 
fence, and  that  in  the  period  antedating  the  Con- 
stitution, establishments  had  grown  up  under  the 
powers  which  those  States  had  of  regulating  trade, 
which  ought  not  to  be  allowed  to  perish  in  conse- 
quence of  recent  alterations,  and  as  he  was  the 
leader  of  the  House,  his  surrender  to  the  idea  of 
making  protection  an  incidental  consideration  in 
the  raising  of  the  revenue  of  the  United  States  en- 
grafted that  system  upon  the  legislation  of  the 
country.  A  discrimination  was  imposed  in  favor  of 
teas  imported  in  American  bottoms  ;  a  tonnage  duty 
was  imposed,  discriminating  in  favor  of  American 
products ;  a  discriminating  duty  on  spirits  was 
passed  in  favor  of  nations  having  commercial  treat- 
ies with  the  United  States.  In  the  first  Congress 
the  slavery  question  made  its  earliest  appearance 


THE   POST-CONSTITUTIONAL   HISTORY.        151 

in  the  shape  of  a  proposition,  emanating  from  Mr. 
Parker,  of  Virginia,  to  insert  a  clause,  imposing  a 
duty  of  ten  dollars  on  every  slave  imported,  with  a 
view  of  discouraging  the  slave  trade.  The  motion 
was  not  agreed  to,  but  the  discussion  which  it  raised, 
in  which  Madison  took  an  important  part,  is  inter- 
esting, as  showing  that  at  that  time  many  of  the 
Southern  States  were  anxious  to  limit  the  growth 
of  the  slave  power,  and  looked  forward  to  the  period 
when  slavery  might  become  entirely  obliterated. 
The  same  Congress  passed  a  Navigation  law  for  the 
registering  of  American  vessels  ;  created  a  Coast 
Survey ;  organized  Departments ;  and  placed  the 
power  of  appointment  and  removal  in  the  hands  of 
the  President.  The  power  of  removal  by  the  Pre- 
sident was  strongly  opposed,  and  the  measure 
conferring  it  passed  the  Senate  only  by  the  casting 
vote  of  the  Vice-President,  Mr.  Adams.  The  dis- 
cussions which  preceded  and  accompanied  the 
adoption  of  the  Constitution  by  the  various  States, 
so  unmistakably  demonstrated  the  apprehensions 
of  great  masses  of  the  people,  that  the  Constitution 
was  not  sufficiently  guarded  by  the  declaration  of 
the  rights  of  the  people,  which  were  to  be  free  from 
any  possible  impairment  at  the  hands  of  authority, 
that  Mr.  Madison  at  once  proposed  amendments  to 
lay  those  fears  at  rest,  and  the  amendments  which 


152  CONSTITUTIONAL   HISTOEY. 

have  been  the  subject  of  consideration  in  the  last 
chapter,  were  the  result  of  this  action.  Jefferson's 
oppositions  to  the  Constitution  as  it  stood  in  1789, 
were  mainly  met  by  the  amendments,  except  the 
one  in  reference  to  which  he  was  extremely  strenu- 
ous, that  the  Executive  shall  not  be  reeligible  to 
office.  The  important  subject  of  the  national  debt 
was  laid  over  until  the  following  session  for  the 
purpose  of  receiving  the  report  of  the  Secretary  of 
the  Treasury  upon  a  plan  for  its  liquidation.  On 
the  subject  of  the  public  lands  nothing  was  done 
except  to  effect  the  passage  of  an  act  for  the 
government  of  the  Northwest  territory.  The  most 
stormy  debate  of  the  session  was  upon  the  question 
of  the  permanent  seat  of  the  federal  Government. 
The  Southern  members  wanted  a  site  on  the  Poto- 
mac ;  Pennsylvania  wanted  a  return  to  Philadel- 
phia, which  had  been  the  seat  of  the  Continental 
Congress.  The  House  agreed,  as  a  matter  of  com- 
promise, to*  fix  the  seat  of  Government  on  the 
Susquehanna.  The  bill  came  back  from  the  Senate 
so  altered  as  to  substitute  for  the  Susquehanua  the 
district  ten  miles  square  adjoining  Philadelphia. 
The  House  agreed  to  this,  with  a  slight  amendment 
which  made  it  necessary  to  have  the  bill  go  back  to 
the  Senate  ;  but  by  that  time  the  dissatisfaction  of 
the  Southern  members  had  made  itself  so  apparent 


THE   POST-CONSTITUTIONAL   HISTORY.        153 

that  it  was  deemed  wiser  to  lay  the  whole  matter 
over  to  the  following  session. 

The  only  important  administrative  question  that 
characterized  the  first  year  of  "Washington's  admin- 
istration in  addition  to  the  mere  selection  of  persons 
to  fill  the  various  offices,  was  the  making  of  treaties 
with  the  Indian  nations  ;  and  as  along  the  whole 
western  frontier  the  Indian  affairs  were  in  a  most 
unsettled  state,  it  was  necessary  to  take  immediate 
measures  to  prevent  a  general  outbreak  among  the 
Indians  against  the  new  Government.  "Washington 
appointed  commissioners  to  treat  with  them,  and 
these  commissioners  confirmed  some  of  the  old 
Indian  treaties  that  had  been  made  by  the  various 
States,  and  promised  the  Indians  immunity  from 
taxation  and  forcible  prevention  of  settlers  from 
trespassing  upon  their  lands. 

At  the  opening  of  the  following  session  Alex- 
ander Hamilton,  the  Secretary  of  the  Treasury, 
reported  the  debt  due  to  the  Court  of  France  and 
to  private  individuals  and  foreign  nations,  some- 
thing below  twelve  million  dollars,  and  the  do- 
mestic debt  at  $42,500,000.  The  highest  possible 
tone  was  adopted  by  Hamilton  as  to  the  obligation 
of  the  United  States  for  the  payment  of  the  debt 
and  the  expediency  for  doing  so,  and  not  to  lend 
ear  to  the  suggestions  which  were  made  to  scale 


154  CONSTITUTIONAL   HISTOKY. 

the  debt  because  of  the  depreciated  prices  at  which 
the  then  holders  had  bought  up  its  evidences  on 
speculation.  The  State  debts  arising  out  of  the 
war,  which  were  practically  repudiated,  made  an- 
other addition  of  $26,000,000.  He  proposed  the 
funding  of  the  debt  at  six  per  cent.,  and  to  receive 
in  payment  of  the  new  bonds  the  evidences  of  the 
old  debt,  and  to  create  a  sinking  fund  from  post- 
office  proceeds  for  the  gradual  extinction  of  the 
new  debt.  The  Continental  paper  money,  which 
amounted  to  $200,000,000,  had  by  the  Continental 
Congress  itself  been  reduced  by  a  system  of  scaling 
at  the  rate  of  forty  for  one.  There  were  $78,000,- 
000  of  the  Continental  paper  money  yet  outstand- 
ing, and  it  was  intended  not  to  disturb  that  re- 
duction, but  to  accept  the  Continental  paper  money 
upon  the  basis  of  two  and  one-half  cents  on  the 
dollar.  It  was  finally  agreed  that  the  Government 
would  pay  the  holders  of  the  certificates  of  the 
United  States  the  face  thereof,  and  the  question 
arose  on  the  assumption  of  the  State  debts.  This 
led  to  an  extremely  acrimonious  debate,  arising 
from  the  fact  that  some  of  the  States  had  largely 
provided  for  the  expenses  of  the  war  by  taxation, 
while  others  ran  recklessly  into  debt,  and  it  was 
evidently  unfair  to  the  inhabitants  of  the  States 
who  had  borne  the  burden  of  taxation  during  the 


THE   POST-CONSTITUTIONAL   HISTORY.        155 

war  for  the  purpose  of  preventing  the  accumulation 
of  a  debt,  that  they  should  be  now  called  upon  to  pay 
the  interest  and  eventually  the  principal  of  bonds 
representing  the  reckless  issues  of  bills  of  credit  by 
sister  States,  and  thus  to  tax  themselves  for  the  free- 
dom from  taxation  which  their  neighbors  had  enjoyed. 
The  plan  of  Hamilton  finally  prevailed  on  a  very 
close  vote.  During  the  second  year  of  the  Union 
under  the  Constitution  a  bill  was  passed  to  locate 
the  seat  of  Government  for  ten  years  at  Philadel- 
phia, and  thereafter  permanently  on  the  Potomac. 
This  measure  was  passed  only  by  combining  there- 
with the  assumption  of  the  State  debts,  as  a  com- 
promise measure.  During  the  third  year  of  Wash- 
ington's administration  a  division  arose  in  the 
Cabinet,  which  subsequently  resulted  in  a  party 
division  on  the  bill  to  incorporate  the  Bank  of  the 
United  States.  Jefferson  and  Madison  were  of  the 
conviction  that  it  was  an  unconstitutional  measure 
and  had  a  tendency  to  corrupt  the  powers  of  gov- 
ernment. Hamilton  and  Knox,  members  of  the 
Cabinet,  gave  their  written  opinions  in  favor  of  the 
President  signing  the  bill.  Randolph  was  also 
opposed  to  it.  It  is  fair  to  say,  however,  that  the 
Republican  party,  which  subsequently  became  the 
Democratic-Republican,  and  later  the  Democratic 
party,  drew  considerable  accession  of  strength  from 


156  CONSTITUTIONAL   HISTORY. 

the  Federalist  party  in  process  of  time,  because 
the  loyalty  of  the  Republican  party  to  the  Con- 
stitution since  its  adoption  could  scarcely  be 
questioned.  Opposition  to  the  Constitution  itself 
had  well-nigh  died  out.  There  was  room  and 
reason,  however,  for  the  existence  of  a  party  of 
strict  constructionists  of  the  powers  conferred, 
actuated  by  a  strong  determination  to  confine  in 
every  possible  way  the  Federal  party  to  keep 
within  the  limits  of  federal  power  and  to  assert  the 
local  rights  of  States  as  to  all  matters  not  con- 
ferred by  the  Constitution  to  federal  control.  The 
firm  conviction  had  taken  root  in  the  minds  of 
many  able  men  in  the  United  States,  of  which 
Jefferson  was  the  leader,  that  State  organizations 
were  the  only  form  in  which  the  liberty  of  the  cit- 
izen could  be  preserved,  and  that  a  nation  of  the 
territorial  extent  and  diversity  of  interests  of  the 
United  States  would  in  time  become  a  centralized 
power  sufficently  strong  to  crush  out  individual 
liberty  unless  there  existed  in  the  form  of  States 
qiiasi  independent  governments — as  imperium  in 
imperio  sufficiently  powerful  to  make  head  against 
the  centralized  Government. 

During  the  administration  of  Washington,  the 
divergence  of  the  ideas  represented  by  Thomas 
Jefferson  and  those  represented  by  Alexander 


THE   POST-CONSTITUTIONAL   HISTOEY.        157 

Hamilton,  became  more  and  more  marked,  so  that 
as  early  as  June,  1794,  Jefferson  felt  constrained  to 
retire  from  Washington's  Cabinet.     During  part  of 
the  time  of  Washington's  administration,  the  rela- 
tions towards  both  France  and  England  had  be  come 
critical,  but  Washington's  tact  overcame  the  diffi- 
culties, and  the  causes  of  irritation,  although  not 
entirely  removed,  were  for  the  time  being  avoided. 
Washington  refusing  to  be  a  candidate  for  a  third 
term,  caused  the  election,  in  1796,  of  John  Adams 
and  Thomas  Jefferson  as  respectively  President  and 
Vice-President  of  the  United  States.      It  will  be 
remembered  that  the  election  was  then  held  be- 
fore the  new   amendment   took   effect   under   the 
original  clause  of  the  Constitution,  by  which  both 
great  parties  in  the  United  States  were  substan- 
tially represented   in   the    offices   respectively   of 
President  and  Vice-President ;  because  under  the 
original  clause  he   who  had  the   largest   number 
of    votes   became    President,   and    the   one    next 
in    number    became    Vice-President.      Therefore, 
Adams,    representing    the     Federalist    party,  be- 
came President  of  the  United  States,  and  Thomas 
Jefferson,  who  was  then  the  leader  of  the  Kepub- 
lican  party,  became  the  Vice-President.     Madison, 
who  had  heretofore  acted  between  the  two  parties, 
became   at  that    time,  with  Jefferson,  one   of  the 


158  CONSTITUTIONAL   HISTOEY. 

leaders  of  the  Republican  party.  During  Adams' 
administration  the  party  lines  became  more  closely 
drawn,  and  there  was  considerable  accession  of 
strength  to  the  Republican  party  as  measure  after 
measure  was  introduced  and  debated,  which  seemed 
to  indicate  a  centralization  of  political  power. 
Another  one  of  the  reasons  why  the  Republican 
party  grew  in  strength  about  that  period,  was,  that 
there  were  incessant  petitions  for  the  abolition  of 
slavery  introduced  in  Congress,  and  whilst  Congress 
protested  in  several  instances  that  it  had  no  right 
to  interfere  with  domestic  slavery  in  the  United 
States,  the  Southern  and  Middle  States  felt  that 
their  safety  against  the  ultimate  interference  in  that 
particular  by  the  United  States  Government  rested 
upon  the  general  acceptance  of  the  States  rights 
doctrine  insisted  upon  by  the  Republican  leaders. 

During  the  first  year  of  Adams'  administration 
(1797)  affairs  with. France  became  complicated  by 
reason  of  the  war  then  waging  between  France  and 
England,  in  which  France  insisted  that  America, 
her  former  ally,  should,  if  not  openly  aid  the 
French  republic,  at  least  take  a  position  of  armed 
neutrality  as  against  England.  The  decrees  of 
the  French  republic  which  injuriously  affected 
American  commerce  led  to  a  rupture  of  diplomatic 
relations,  and  caused,  in  the  following  year,  the 


THE  POST-CONSTITUTIONAL   HISTOKY.        159 

passage  of  the"  Alien  and  Sedition  laws,  the  Alien 
law  empowering  the  President  to  expel  such  per- 
sons as  he  might  find  who  were  plotting  against  the 
public  peace,  and  the  Sedition  act  being  designed 
to  restrict  the  freedom  of  speech  and  liberty  of  the 
press.     The  passage  of  these  measures  by  the  Fed- 
eral party  added  to  its  unpopularity.     The  desire 
on  the  part  of  the  people  of  the  United  States  to 
preserve  peace,   caused  them  to  look  with  grave 
suspicion  upon  the  active  preparations  which  were 
then  made  for  war.     In  the  year  1800  a  condition 
of  irritation,  almost  of  war,  already  existed  between 
France  and  the  United  States.    But  with  the  disso- 
lution of  the  French  Directory  in  1799,  and  the  ac- 
cession of  Napoleon  as  First  Consul  of  the  French 
republic,  a  treaty  was  soon  concluded.     The  year 
1800  also  witnessed  the  first  caucus  nomination  for 
Presidential  candidates  in  the  United  States  under 
the  Constitution.     In  1800  an  election  took  place 
for  President  of  the  United  States,  to  take  the  place 
of  Adams.   When  the  electoral  votes  were  counted, 
in  February  of  the  following  year,  it  was  found  that 
no  election  had  taken  place,  as  Aaron  Burr  and 
Thomas  Jefferson  had  an  equal  number  of  votes, 
and  the  choice  under  the  Constitution  devolved  on 
the  House  of  Representatives,  which,  on  the  thirty- 
sixth  ballot,  elected  Mr.  Jefferson  President. 


160  CONSTITUTIONAL   HISTORY. 

A  breach  had  taken  place  between  the  two  -great 
leaders  of  the  Federal  party,  Adams  and  Hamilton, 
immediately  prior  to  the  election  of  Jefferson, 
which  weakened  the  Federal  party  considerably, 
and  caused  the  success  of  the  Republicans.  Dur- 
ing this  contest  between  Jefferson  and  Burr  for  the 
Presidency,  each  one  having  had  seventy-three 
votes  in  the  Electoral  College,  Hamilton  cast  his  in- 
fluence in  favor  of  Jefferson  and  led  to  his  election. 
This  and  subsequent  acrimonious  contests  between 
Hamilton  and  Burr,  caused  the  unfortunate  duel 
between  them  in  1804,  which  cost  Hamilton  his  life. 

The  dangers  to  the  country  which  this  struggle 
for  the  Presidency  disclosed,  led  to  the  adoption  of 
the  twelfth  amendment,  by  which  the  President 
and  Yice-President  are  voted  for  by  the  Electoral 
College  separately  on  distinct  lists,  and  each  inde- 
pendently of  the  other. 

Jefferson  introduced,  when  Congress  met  after 
his  election,  the  innovation  to  send  a  message  to 
Congress  instead  of  opening  Congress  in  person. 
It  savored  too  much  of  British  forms  for  the  Presi- 
dent to  open  Congress  in  person,  and  hence  the 
Republican  party,  to  show  its  contempt  for  mon- 
archical institutions,  adopted,  through  the  instru- 
mentality of  Jefferson,  the  form  which  has  since 
been  followed  by  every  President  of  the  United 


THE  POST-CONSTITUTIONAL   HISTOKY.        161 

States,  of  not  meeting  Congress  in  person,  but  of 
sending  messages,  as  from  time  to  time  his  views 
to  Congress  are  to  be  expressed. 

The  leading  incident  of  Jefferson's  first  few  years 
of  administration  was  the  purchase  of  Louisiana 
from  Napoleon  for  $15,000,000.  Louisiana  as  then 
ceded  was  a  territory  out  of  which  ten  States  (in- 
clusive of  what  is  now  known  as  Louisiana),  three 
Territories,  and  a  large  part  of  two  other  States 
have  since  been  carved. 

Jefferson  continued  in  office  during  two  terms,  at 
the  end  of  which  the  electoral  votes  were  cast  for 
James  Madison  and  George  Clinton.  This  was 
again  a  Republican  triumph.  As  early  as  1805  the 
Federal  party  was  reduced  to  seven  senators  and 
twenty-five  members  of  the  House.  The  parties 
divided  on  the  Embargo  Act,  and  already  what  sub- 
sequently developed  into  a  war  with  Great  Britain, 
arising  from  the  impressment  of  American  seamen 
and  interference  with  American  ships,  was  looming 
up,  as  it  was  claimed  that  in  the  war  between  Eng- 
land and  France  almost  six  thousand  American 
seamen  had  become  impressed  in  the  British  navy. 
The  embargo  was  intended  as  an  act  of  retaliation 
against  both  England  and  France  for  the  mischie- 
vous effect  upon  American  commerce  of  the  Milan- 
Berlin  decrees  and  the  British  Orders  in  Council. 


162  CONSTITUTIONAL   HISTOKY. 

During  the  administration  of  Madison  war  was 
declared  against  England  on  the  18th  of  June,  1812, 
•which  lasted  until  December  24th,  1814,  when  a 
treaty  of  peace  was  signed  at  Ghent,  although  the 
actual  hostilities  continued  until  February,  1815, 
when  the  news  of  the  signing  of  a  treaty  first  reached 
America. 

During  the  war  the  Federal  party  fell  into  utter  con- 
fusion and  disgrace  in  consequence  of  its  opposition 
to  the  war  and  because  of  the  call  of  the  convention 
known  as  the  Hartford  Convention,  in  which  some 
of  the  New  England  federalists  strongly  announced, 
through  their  representatives  there,  the  theory  of 
secession,  if  the  war  should  be  prosecuted  much 
longer,  as  it  was  claimed  that  the  war  was  destruc- 
tive of  the  interests  of  the  Eastern  States,  while  it  but 
remotely  affected  the  Middle  and  Western  States. 
The  successful  termination  of  the  war  strengthened 
the  Republican,  or  Republican-Democratic  party, 
as  it  was  then  called,  to  such  a  degree  that  it  domi- 
nated in  almost  every  State  in  the  Union.  The 
result  of  the  war  was  the  swelling  of  tho  debt  to 
more  than  $127,000,000,  but  the  moral  results  from 
it  were  on  the  whole  beneficial,  because  the  gal- 
lantry with  which  the  navy  was  handled,  and  the 
battle  of  New  Orleans,  fought  under  General  Jack- 
son on  the  American  side,  gave  to  the  American 


THE   POST-COXSTITUTIOXAL   HISTORY.        1G3 

people  a  degree  of  self-reliance  which  largely  de- 
veloped the  growth  of  a  spirit  of  national  feeling 
in  the  United  States. 

The  charter  of  the  Bank  of  the  United  States 
having  expired  in  1811,  it  was  reorganized  in  181C, 
with  a  capital  of  $35,000,000.  Within  a  compara- 
tively short  period  the  method  of  its  administration 
produced  a  speculative  era  which  brought  in  its 
train  a  financial  crisis  and  distress. 

The  main  political  questions  which  agitated  the 
people  of  the  United  States  during  the  period  of 
Madison's  administration  concerning  the  relations 
of  the  United  States  with  England  were  war  or 
anti-war  before  the  war  broke  out,  and  a  vigorous 
prosecution  of  the  war  or  a  discontinuance  of  it 
whilst  it  was  in  operation.  It  was  during  the  latter 
part  of  this  period  that  Webster  made  his  first  ap- 
pearance in  the  Congress  of  the  United  States,  and 
commanded  immediate  attention  by  his  eloquence 
and  talent  for  debate. 

At  the  close  of  Madison's  administration  the  thir- 
teen States  of  the  Union  had  already  grown  into 
nineteen,  the  population  of  4,000,000  had  grown  to 
almost  10,000,000,  and  the  House  of  Representa- 
tives had  grown  to  a  body  of  213  members. 

In  1816  James  Monroe,  the  Republican-Demo- 
cratic candidate,  was  elected  President.  The  second 


164  CONSTITUTIONAL    HISTOET. 

year  of  Monroe's  administration  witnessed  the  com- 
mencement of  the  struggle  on  the  slavery  question 
between  the  Northern  and  the  Southern  States, 
which  culminated  in  the  War  of  the  Rebellion  in 
1861.  On  the  bill  to  authorize  the  people  of  the 
Territory  of  Missouri  to  form  a  constitution  and 
State  government,  and  for  its  admission  into  the 
Union,  Mr.  Talmage,  of  New  York,  offered  the  fol- 
lowing proviso  :  "  Provided  that  the  further  intro- 
duction of  slavery  or  involuntary  servitude  be  pro- 
hibited, except  for  the  punishment  of  crimes  whereof 
the  party  shall  have  been  convicted,  and  that  all 
children  born  within  said  State  after  the  admission 
thereof  into  the  Union  shall  be  free  at  the  age  of 
25  years."  This  raised  a  storm,  which  was  only 
quieted  for  a  time  in  the  year  following  by  the 
Missouri  Compromise.  This  came  about  by  an 
attempt  to  pass  the  bills  to  admit  Missouri  and 
Maine  as  States  together,  in  one  bill,  restricting 
slavery  in  them.  The  measure  which  was  passed 
eventually  was  the  prohibition  of  slavery  from  the 
rest  of  the  Louisiana  accession  north  of  the  36°  30' 
north  latitude.  During  this  year  Florida  was  ceded 
by  Spain,  and  the  eastern  boundary  of  Mexico  was 
fixed  at  the  Sabine  River,  thus  transferring  Texas, 
which  was  debatable  ground  as  to  whether  or  not 
it  came  to  the  United  States  with  the  Louisiana 


THE   POST-CONSTITUTIONAL   HISTORY.        165 

purchase,  to  Spanish  rule  as  part  of  the  nego- 
tiation which  resulted  in  the  Florida  purchase. 
The  actual  exchange  of  ratifications,  however,  did 
not  take  place  until  1821.  In  1821  Monroe  entered 
upon  his  second  term.  During  that  year  the  Mis- 
souri struggle  came  up  again  on  the  application  of 
Missouri  for  admission,  after  the  passage  by  her  of 
a  State  Constitution.  During  that  year  Henry 
Clay,  by  reason  of  his  great  services  as  pacificator 
between  the  North  and  the  South,  became  a  recog- 
nized leader  in  American  politics. 

The  message  of  Monroe  to  Congress  in  1823 
announced  for  the  first  time  the  doctrine  of  oppo- 
sition on  the  part  of  the  United  States  to  in- 
tervention on  the  part  of  European  governments 
in  the  affairs  of  states  and  governments  othan  than 
the  United  States  on  the  North  American  con- 
tinent, claiming  a  sort  of  protectorate  in  that 
particular  for  the  United  States,  at  least  in  so  far 
as  to  insist  against  non-intervention  of  European 
powers  in  the  affairs  of  governments  on  the  North 
American  continent.  This  doctrine  has  become 
known  as  the  "Monroe  doctrine,"  and  was  ex- 
pressed in  these  terms :  "We  owe  it,  therefore,  to 
candor  and  to  amicable  relations  existing  between 
the  United  States  and  those  powers  (the  European 
powers)  to  declare  that  we  shall  consider  any 


166  CONSTITUTIONAL   HISTOEY. 

attempt  on  their  part  to  extend  their  system 
to  any  portion  of  this  hemisphere  as  dangerous 
to  our  peace  and  safety.  With  the  existing 
colonies  or  dependencies  of  any  European  power 
we  have  not  interfered,  but  with  the  Govern- 
ments which  have  declared  their  independence, 
we  have,  on  great  consideration,  and  on  just 
principles,  acknowledged,  we  could  not  view 
any  interposition  for  the  purpose  of  oppressing 
them  or  controlling  in  any  other  manner  their 
destiny  as  any  other  than  an  unfriendly  dis- 
position towards  the  United  States."  This  was 
called  out  by  what  was  supposed  to  be  the 
design  of  the  Holy  Alliance  to  extend  a  fostering 
care  to  the  young  American  republics  of  Spanish 
origin. 

The  year  1824  witnessed  the  first  sectional 
struggle  upon  the  tariff  question,  the  North  and 
Middle  States  voting  in  favor  of  a  protective  tariff, 
the  South  voting  solidly  against  it. 

At  the  end  of  Monroe's  administration  the  pub- 
lic debt  had  been  reduced  from  $123,000,000  to 
$90,000,000,  and  the  country  was  in  a  state  of  re- 
markable prosperity. 

In  the  autumn  of  1825  John  Quincy  Adams, 
again  a  Kepublican,  was  elected  President  of  the 
United  States  by  the  House  of  Representatives, 


THE  POST-CONSTITUTIONAL   HISTOEY.        167 

in  consequence  of  a  failure  to  elect  by  the  Elect- 
oral College.  John  C.  Calhoun  was  elected  Vice- 
President. 

An  attempt  was  made  during  the  early  years  of 
President  Adams'  administration  to  amend  the 
Constitution  as  to  the  mode  of  electing  the  Presi- 
dent of  the  United  States  by  having  him  elected 
directly  by  the  people  in  Congressional  districts. 
Although  the  proposition  met  with  approval  in 
both  branches  of  the  American  Legislature,  it 
failed  to  obtain  the  necessary  two-thirds  vote  in 
both  branches,  and  therefore  no  further  steps  were 
taken. 

In  February,  1826,  the  republics  of  South  America 
made  a  proposition  to  the  United  States  to  deliber- 
ate with  them  upon  measures  for  common  advan- 
tage, at  a  Congress  to  be  held  at  Panama.  This 
led  to  serious  opposition  on  the  part  of  the 
South,  for  the  reason  that  as  some  of  the  South 
American  republics  had  recognized  the  equality  of 
the  negro  by  admitting  him  to  citizenship,  it  was, 
as  they  claimed,  an  indirect  way  of  recognizing 
negroes  as  citizens.  The  debate  upon  this  pro- 
position intensified  the  feeling  in  Congress  on  the 
slavery  question,  and  was  the  clearest  possible 
demonstration  that  the  Missouri  Compromise,  which 
was  intended  forever  to  allay  all  bitterness  upon 


168  CONSTITUTIONAL   HISTORY. 

this  subject,  fell  sliort  of  what  was  expected  from 
it.  The  feeling  of  mutual  distrust  between  the 
Northern  and  Southern  States  was  still  further  in- 
creased by  the  tariff  legislation  of  1828.  The 
duties  were  made  higher,  and  the  people  of  South 
Carolina  petitioned  their  Legislature  "  to  save  them 
if  possible  from  the  conjoint  grasp  of  usurpation 
and  poverty."  They  declared  that  the  citizens  of 
South  Carolina  would  be  condemned  to  work  as 
tributaries  of  the  Northern  and  Middle  sections  of 
the  Union  under  such  tariff  legislation.  The  Leg- 
islature of  Georgia  protested  against  the  tariff  act 
in  1829,  and  the  Legislature  of  South  Carolina 
during  the  same  year  made  a  solemn  protest  against 
the  same  measure. 

Andrew  Jackson  was  elected  President  of  the 
United  States  in  1828,  with  Calhoun  again  as  Vice- 
President  during  his  first  term,  and  Martin  Van 
Buren  as  Vice-President  during  his  second  term. 
General  Jackson  in  his  inaugural  address  stated 
that  the  popular  sentiment  declared  in  a  manner 
too  legible  to  be  overlooked,  the  task  of  reform, 
the  duty  of  the  administration.  This,  he  inter- 
preted in  practice,  meant  that  he  was  to  remove 
the  office-holders  of  the  former  administration,  and 
during  the  first  year  of  his  administration  he  made 
upwards  of  seven  hundred  removals  from  office  on 


THE   POST-CONSTITUTIONAL   HISTORY.        169 

political  grounds,  without  including  subordinate 
clerks,  -whereas  during  the  forty  years  preceding 
there  had  been  but  sixty-four  removals.  This 
system  of  wholesale  removal,  not  on  the  ground  of 
the  unfifcness  of  the  occupant  for  the  position,  but 
because  his  views  were  not  entirely  in  harmony 
with  the  administration,  on  matters  which  but  re- 
motely, if  at  all,  affected  the  duties  of  his  office, 
inaugurated  the  "  spoils  "  system  in  American  poli- 
tics. Subsequently  upon  every  change  of  Presi- 
dential incumbents,  by  the  election  of  chiefs  of 
party  differing  from  the  party  then  in  power,  a 
decapitation  of  public  officials  took  place,  so  that  it 
became  an  accepted  principle  as  to  tenure  of  office 
in  the  United  States,  that  appointments  were  for 
the  four  years  only  during  which  the  President 
was  elected,  and  whether  the  appointment  was  to 
continue  thereafter  depended  entirely  upon  the 
accident  whether  there  would  either  be  a  subse- 
quent term  for  the  same  Presidential  incumbent,  or 
whether  the  same  party  would  remain  in  power, 
and  therefore  the  same  influences  which  caused  the 
appointment  could  be  kept  at  work  to  continue  the 
incumbent  in  his  position. 

In  his  very  first  message  to  Congress  General 
Jackson  again  recommended  an  amendment  to  the 
Constitution,  giving  to  the  people  the  direct  election 


170  CONSTITUTIONAL  HISTORY. 

of  the  President.  No  steps,  however,  were  taken 
by  Congress  to  submit  that  question  for  ratification 
to  the  people. 

The  nullification  doctrines,  by  which  is  meant  the 
doctrine  of  the  right  of  the  States  to  refuse  obe- 
dience to  laws  of  the  United  States  when  they  are 
supposed  to  be  inimical  to  their  interests,  were 
openly  avowed  by  some  of  the  Southern  States, 
notably  South  Carolina,  and  the  Yice-President  of 
the  United  States.  Mr.  Calhoun  was  the  recognized 
chief  of  the  party  of  nullification,  and  gave  to  it 
whatever  intellectual  impulse  and  theoretical  basis 
it  had.  The  feeling  between  President  Jackson  and 
the  Yice-President  upon  this  subject  became  so 
marked,  that  in  March,  1831,  the  entire  Cabinet, 
with  the  exception  of  the  Postmaster-General,  re- 
signed. 

The  charter  of  the  United  States  Bank  once  more 
expiring  by  limitation,  the  President  of  the  United 
States  took  a  determined  stand  against  its  re- 
newal. In  his  annual  message,  he  said :  "  Nothing 
has  occurred  to  lessen  in  any  degree  the  dangers 
which  many  of  our  citizens  apprehend  from  that 
institution  as  at  present  organized."  1831  also 
witnessed  the  organization  of  the  Mormon  settle- 
ment at  Kirtland,  and  also  in  Missouri. 

During  the  session  of  1832  the  Senate  and  House 


THE   POST-CONSTITUTIONAL   HISTORY.        171 

of  Eepresentatives  passed  a  bill  to  re-charter  the 
bank  of  the  United  States,  but  the  President  vetoed 
it,  and  the  vote  two-thirds  of  both  branches  could 
not  be  obtained  to  pass  the  act  over  the  President's 
veto. 

In  November  of  the  same  year,  South  Carolina 
passed  an  act  to  nullify  the  tariff  bill  of  Congress  on 
the  ground  that  it  was  an  unconstitutional  measure, 
and  in  December  of  the  same  year,  the  President 
issued  a  proclamation  to  warn  the  citizens  of  South 
Carolina  from  engaging  in  acts  of  resistance,  sent 
troops  to  Charleston  under  General  Scott  to  enforce 
the  laws,  and  stated  in  his  declaration  that  if  South 
Carolina  could  nullify  the  revenue  laws  of  the 
United  States,  every  other  State  could  do  so,  and 
therefore  no  revenue  could  by  any  possibility  be 
collected,  as  all  imposts  must  be  equal.  In  January 
following,  President  Jackson  published  his  nulli- 
fication message,  and  there  was  danger  of  an  im- 
mediate conflict  between  the  State  of  South  Caro- 
lina and  the  United  States  Government,  which  was 
avoided  only  by  the  passage  of  a  modification  of 
the  tariff  of  1828,  by  an  agreement  annually  to 
reduce  one-tenth  of  the  duties  for  seven  years,  at 
the  end  of  which  time  all  of  the  excess  of  the 
duties  above  twenty  per  cent,  should  be  equally 
divided  into  two  parts,  and  one  part  struck  off  at  the 


172  CONSTITUTIONAL  HISTORY. 

end  of  one  year  and  the  other  at  the  end  of  the  fol- 
lowing year ;  so  that  at  the  end  of  nine  years  all 
duties  should  be  reduced  to  twenty  per  cent,  on 
value.  It  was  declared  that  this  act  was  to  be  per- 
manent. The  bill  passed  both  Houses,  and  allayed 
the  discontent,  and  prevented  at  that  time  the  ne- 
cessity for  resort  to  arms. 

During  the  recess  of  Congress,  after  his  inaugu- 
ration for  the  second  time  in  1833,  Jackson  removed 
the  deposits  from  the  United  States  banks.  This 
caused  the  bank,  as  a  matter  of  retaliation  to  con- 
tract its  loans,  which  in  turn  produced  a  commer- 
cial crisis,  and  great  financial  distress,  which  con- 
tinued down  to  1838.  In  the  interval,  the  United 
States  Bank  suspended  payment,  and  finally  became 
insolvent. 

During  Jackson's  administration  there  were 
three  parties  in  the  United  States :  the  Democratic,  of 
which  Jackson  was  at  the  head  ;  the  Anti-Masonic, 
and  the  National  Republican. 

The  old  Republican  party  had  before  that  time 
changed  its  name  to  the  Democratic  party,  and  was 
technically  known  as  the  Democratic-Republican 
party,  by  which  name  it  has  preserved  its  organiza- 
tion down  to  the  present  time. 

Martin  Van  Buren  became  the  nominee  of  the 
Democratic  party  towards  the  end  of  the  Jackson 


THE   POST-CONSTITUTIOlSrAL   HISTORY.        173 

administration,  and  then  for  the  first  time  the  "Whig 
party  made  its  appearance  as  an  offshoot  of  the 
National  Republican  party — the  name  Whig,  for 
the  last  named  party,  appeared  for  the  first  time  in 
an  election  in  1834. 

During  the  administration  of  Jackson  the  United 
States  debt  was  substantially  extinguished.  When 
his  administration  commenced  the  public  debt 
amounted  to  $58,500,000,  and  when  it  ended  it 
amounted  to  but  $291,089.  The  debt  was  not 
wholly  extinguished,  simply  because  the  bonds 
were  not  handed  in  for  payment.  The  exports  of 
the  United  States  had  risen  from  $72,000,000  to 
$128,000,000,  at  the  end  of  his  administration,  and 
the  imports  from  $74,000,000  to  $190,000,000. 

The  division  of  parties  at  this  time  arose 
mainly  from  the  difference  of  construction  of  the 
powers  of  the  United  States  Government,  and  was 
in  another  form  the  continuation  of  the  struggle 
which  commenced  before  the  Constitution  of  the 
United  States  was  framed,  between  the  powers  of 
the  States  and  of  the  United  States,  and  after  it 
was  adopted  the  contest  continued  upon  the  con- 
struction to  be  given  to  the  Constitution  of  the 
United  States.  It  will  be  remembered  that  at  the 
time  of  the  formation  of  the  Constitution  a  large 
proportion  of  the  leading  and  influential  citizens  of 


174  CONSTITUTIONAL  HISTOEY. 

the  country  were  opposed  to  the  merging  of  the 
State  sovereignties  and  that  of  the  United  States 
under  the  form  in  which  this  was  accomplished  by 
the  Constitution  of  the  United  States.  After  the 
Constitution  was  adopted  and  the  power  of  the 
United  States  grew  both  at  home  and  abroad,  and 
the  prosperity  of  the  community  developed,  this 
form  of  opposition  was  entirely  extinguished,  but 
was  transmitted  into  a  strict  construction  of  the  Con- 
stitutional powers  granted.  "When  the  Republican 
party,  however,  came  into  power,  the  Federalists 
or  Loose  Constructionists,  for  the  purpose  of  limit- 
ing the  power  of  their  opponents,  found  themselves 
in  a  position  to  be  compelled  to  adopt  almost  wholly 
the  language  of  their  former  opponents,  and  thus 
strangely  enough  became  the  Strict  Constructionists, 
in  the  earlier  period  of  the  Republican  success  under 
Jefferson  to  the  extent  that  in  the  Hartford  Conven- 
tion they  asserted  in  as  ultra  form  as  was  subse- 
quently asserted  by  some  of  the  Southern  States,  the 
right  of  the  States  to  nullify  Congressional  legisla- 
tion if  they  deemed  it  unconstitutional.  The  success 
of  the  war  of  1812  caused  the  Federalist  party  so 
utterly  to  fall  into  disgrace  that  it  became  extin- 
guished as  a  party  organization.  The  desire  to 
use  the  credit  of  the  United  States  for  purposes  of 
\nternal  improvement,  and  the  growing  influence  of 


THE  POST-CONSTITUTIONAL   HISTORY.        175 

the  manufacturing  classes,  caused  a  new  organiza- 
tion— the  Whig  organization — to  arise,  which  again 
in  its  tenets  and  its  tendencies  resembled  the  Fed- 
eral party.  They  claimed  the  right  to  use  the  funds 
of  the  Union  for  purposes  of  internal  improvements, 
and  to  have  the  United  States  subscribe  or  loan  its 
credit  for  the  purpose  of  internal  improvements  in 
various  States,  and  to  use  the  revenue  system  of 
the  United  States  for  the  purpose  of  encouraging 
domestic  manufactures,  to  grant  subsidies  and  to 
build  up  manufacturing  industries  of  the  nation  at 
the  expense  of  the  commercial  and  agricultural  in- 
terests. 

At  the  time  of  the  inauguration  of  Martin  Yan 
Buren  as  President  of  the  United  States,  the  con- 
test which  theretofore  had  been  carried  on  between 
Congress  and  the  President,  by  the  passage  of  bills 
favoring  internal  improvements  and  which  were 
vetoed  by  the  President,  continued,  so  that  at  the 
time  of  the  opening  of  the  13th  administration  the 
lines  between  the  Whigs  and  Democrats  were 
closely  drawn  upon  those  questions.  Yan  Buren's 
administration  began  under  circumstances  of  extreme 
financial  distress.  Excessive  issues  of  paper  money 
had  caused  reckless  speculation  and  raised  the 
prices  of  lands  far  beyond  their  actual  value,  and 
the  sudden  calling  in  of  loans  in  the  spring  of  1837 


176  CONSTITUTIONAL    HISTORY. 

resulted  in  a  suspension  of  specie  payments  by  the 
banks  which  precipitated  a  commercial  and  financial 
panic  of  the  utmost  severity.  The  President  then  for 
the  first  time  recommended  a  plan  of  sub-treasury 
deposits,  for  the  purpose  of  preventing  at  any  future 
time  a  further  copartnership  between  the  Govern- 
ment and  the  banks,  and  to  have  for  the  Govern- 
ment substantially  its  own  depository  and  disburs- 
ing agents  throughout  the  United  States.  In  1840, 
by  a  small  majority,  this  independent  treasury 
scheme  became  successful ;  but  indications  were 
already  but  too  abundant  that  the  Whig  party, 
making  capital  of  the  financial  and  commercial  dis- 
tresses of  the  Yan  Buren  administration,  and  at- 
tributing it  largely  to  the  fact  that  the  Government 
refused  to  lend  its  aid  to  internal  improvements, 
and  that  it  had  bankrupted  the  banks  in  consequence 
of  the  organization  of  the  independent  treasury 
plan,  was  gaining  ground  in  the  United  States,  and 
would  probably  obtain  control  of  the  Government 
at  the  next  Presidential  election.  In  1839  the 
Abolitionist,  or  the  Liberty  party,  made,  for  the  first 
time,  Presidential  nominations.  At  the  Presidential 
election  in  November  the  Whig  electors  were  elect- 
ed throughout  the  United  States,  except  in  two 
Northern  and  five  Southern  States.  In  these  the 
Democratic  electors  were  chosen.  The  nominees 


THE  POST-CONSTITUTIONAL   HISTORY.        177 

of  the  Whig  party,  Gen.  Harrison  and  John  Tyler, 
were  elected  respectively  President  and  Vice-Presi- 
dent of  the  United  States.  Just  one  month  after  his 
inauguration,  President  Harrison  died.  This  was 
the  first  time  that  a  President  died  in  office,  and 
the  Vice-President,  John  Tyler,  under  the  Consti- 
tution became  the  chief  Executive  officer  for  the 
unexpired  term.  Mr.  Tyler  was  known  at  the  time 
of  the  election  not  to  be  strongly  in  sympathy  with 
the  Whig  party,  and  he  was  placed  upon  the 
ticket  as  a  matter  of  concession  to  the  Southern 
element  and  with  the  view  of  catching  Democratic 
votes.  The  breach  between  him  and  the  party  that 
elected  him  was  precipitated  almost  immediately 
after  his  accession  to  the  Presidential  chair,  by  his 
veto  of  the  bill  to  incorporate  the  fiscal  bank  of  the 
United  States. 

The  Whig  party  succeeded  in  the  next  congres- 
sional election,  upon  the  platform  of  the  reestablish- 
ment  of  a  national  bank  and  its  promise  to  pass  in- 
ternal improvement  bills.  The  veto  of  the  bill 
caused  a  conference  between  the  President  and  the 
leaders  of  the  House  and  of  the  Senate,  to  bring  about 
an  agreement  as  to  a  bill  that  he  would  consent  to. 
Such  a  bill  was  drawn,  and  it  was  claimed  that  it  re- 
ceived the  approval  of  the  President ;  but  after  its 
passage  he  vetoed  it,  in  consequence  of  which  his 
8* 


178  CONSTITUTIONAL   HISTORY. 

whole  Cabinet,  with  the  exception  of  Mr.  "Webster, 
resigned.  The  President  was  then  thrown  entirely 
into  the  hands  of  the  Democratic  party,  and  the 
Whigs  who  had  the  majority  in  Congress,  re- 
garded him  as  an  antagonistic  and  democratic 
President. 

The  northeastern  boundary  controversy,  which 
was  at  that  time  one  of  the  questions  in  dispute 
between  America  and  Great  Britain,  was  adjusted 
between  Lord  Ashburton  and  Webster  by  the  treaty 
known  as  the  Ashburton  treaty,  in  1842. 

During  the  years  1843  and  1844  the  annexation 
of  Texas  became  an  important  party  question.  •  The 
South,  apprehensive  of  the  development  of  popula- 
tion in  the  northwestern  territory  and  the  rapid 
formation  of  free  States,  which  threatened  to  en- 
danger the  system  of  domestic  servitude,  deter- 
mined with  the  aid  of  the  President  to  extend  its 
territory  in  the  southwest  and  to  annex  Texas 
— out  of  which  many  States  could  be  carved — to 
the  United  States.  Texas  had  been  in  part 
settled  by  adventurers  from  the  States.  Its 
original  Spanish  population  was  largely  merged 
by  intermarriage  with  Americans,  and  many  of 
the  Mexicans  were  driven  back  toward  the  Rio 
Grande.  On  the  2d  of  March,  1845,  the  bill  to 
annex  Texas  was  finally  passed.  Florida  was 


THE   POST-CONSTITUTIONAL   HISTOKY.         179 

also  admitted  as  a  State,  thus  adding  to  the  slave 
power. 

In  November,  1844,  James  K.  Polk  was  elected 
President  of  the  United  States,  he  being  a  Demo- 
cratic candidate,  and  George  M.  Dallas  Vice-Presi- 
dent. The  newly-elected  President,  on  taking  his 
seat,  committed  himself  fully  to  the  poliey  of  Tyler 
with  reference  to  Texas,  and  immediately  ordered 
possession  to  be  taken  of  the  territory  by  the  troops 
of  the  United  States.  General  Taylor  took  command, 
and  pushed  its  occupation  almost  to  the  Rio  Grande. 
-Without  any  formal  declaration  of  war,  a  conflict 
was  precipitated  between  the  Mexican  troops  and 
the  American  troops,  and  in  the  midst  of  the  ex- 
citement arising  from  the  news  of  this  clash  of  arms 
between  the  Mexican  troops  and  the  United  States 
army,  in  which  the  army  of  the  United  States  proved 
successful,  Congress  was  called  upon  to  declare  that 
a  state  of  war  existed  between  the  United  States 
and  Mexico,  and  to  make  the  necessary  appropria- 
tion for  carrying  it  on  with  effect.  The  army  of 
occupation  was  then  superseded  by  an  army  under 
General  Scott,  to  take  possession  of  the  City  of 
Mexico  itself,  and  in  a  series  of  uninterrupted  vic- 
tories, Mexico  was  captured  and  peace  dictated. 
A  treaty  was  formed  between  the  Mexican  Congress 
and  the  American  Commissioners,  by  which  the 


180  CONSTITUTIONAL    HISTORY. 

independence  of  Texas  was  recognized  and  its  an- 
nexation to  the  United  States  confirmed.  This 
extended  the  territory  of  the  United  States  on  the 
southwest  to  the  Rio  Grande  River  from  El  Paso 
to  its  mouth.  In  addition  to  this,  the  territory  of 
New  Mexico  and  Upper  California  was  ceded.  For 
this  cession  of  additional  territory  the  United  States 
paid  Mexico  $15,000,000,  and  assumed  the  payment 
of  some  $3,500,000  due  to  Mexico  from  certain  citi- 
zens of  the  United  States.  By  a  subsequent  pur- 
chase, for  $10,000,000  more,  known  as  the  Gadsden 
purchase,  an  additional  territory  was  acquired. 

During  the  period  of  the  carrying  on  of  the  war 
with  Mexico  for  the  acquisition  of  Texas,  the  Anti- 
Slavery  party,  in  consequence  of  the  aggressive 
spirit  shown  by  the  South,  and  the  determination 
to  extend  the  slavery  territory,  became  more  and 
more  formidable,  and  on  the  debate  on  the  Wilmot 
proviso — a  provision  to  prohibit  slavery  from  all 
territory  to  be  acquired  from  Mexico — it  was  ap- 
parent that  a  considerable  accession  of  strength 
to  the  anti-slavery  element  had  already  been  made 
among  the  United  States  representatives. 

The  tariff  struggles,  the  war  with  Mexico,  and 
the  question  of  the  limitation  of  slavery  in  the  newly 
acquired  territory,  in  all  of  which  the  South  pre- 
vailed, were  the  main  political  questions  which 


THE   POST-CONSTITUTIONAL   HISTOEY.        181 

divided  parties  during  the  Polk  administration.  In 
1846,  the  Oregon  question  was  settled  by  a  treaty 
with  England,  by  which  the  boundary  line  was  fixed 
at  49°  north  latitude,  instead  of  54°  40',  as  originally 
claimed  by  the  United  States.  In  1848,  the  Demo- 
cratic party  nominated  Mr.  Cass  for  President,  and 
Mr.  Butler  for  Vice-President.  The  Whig  national 
convention  nominated  as  the  candidate  for  President 
Gen.  Zachary  Taylor,  who  divided  the  honors  of 
the  brilliant  success  of  the  Mexican  war  with  Gen. 
Scott,  and  Millard  Fillmore  for  Vice-President.  The 
parties,  as  declared  in  their  platforms  at  that  time, 
divided  on  the  free  trade  and  protection  question, 
the  Democratic  party  insisting  that  no  more  revenue 
should  be  raised  than  is  required  to  defray  the  ne- 
cessary expenses  of  the  Government ;  that  justice 
and  sound  policy  forbade  the  federal  Government 
to  foster  one  branch  of  industry  to  the  detriment  of 
another,  and  that  Congress  had  no  power  under  the 
Constitution  to  interfere  with  or  control  the  ques- 
tion of  slavery  ;  on  the  other  hand,  the  Whig  party 
claimed  as  its  fundamental  principles,  no  extension 
of  slave  territory  by  conquest ;  protection  to  Amer- 
ican industry,  and  the  loan  of  the  credit  of  the 
United  States  for  the  purpose  of  internal  improve- 
ments. An  offshoot  of  the  Democratic  party,  known 
as  the  Free  Soil  party,  at  the  same  time  nominated 


182  CONSTITUTIONAL    HISTORY. 

Martin  Van  Buren,  and  Gen.  Dodge  of  Wisconsin. 
Its  division  from  the  Democratic  party  arose  mainly 
on  the  question  of  extension  of  slavery  to  the  ter- 
ritories ;  they  agreed  with  the  Whigs  upon  the 
question  of  river  and  harbor  improvements,  that 
they  were  objects  of  national  concern,  and  that  it  was 
the  duty  of  Congress,  in  the  exercise  of  its  consti- 
tutional power,  to  provide  therefor.  In  this  tri- 
angular fight,  the  Whigs  succeeded  in  electing 
their  President,  and  consequently  Gen.  Taylor,  of 
Louisiana,  and  Millard  Fillmore,  of  New  York, 
were  respectively  inaugurated  on  the  4th  of  March 
1849,  President  and  Vice-President  of  the  United 
States.  Mainly  in  consequence  of  the  Mexican 
war,  the  public  debt  of  the  United  States  had  again 
increased  to  $48,000,000. 

The  total  population  of  the  United  States  at  that 
time  was  a  little  upwards  of  23,000,000.  The  acqui- 
sition of  new  territory  by  the  United  States  Govern- 
ment reopened  the  old  Missouri  Compromise  ques- 
tion, and  it  was  resolved,  mainly  through  the 
instrumentality  of  the  Southern  leaders  that  the 
territories  should  themselves  determine  whether 
or  not  they  should  recognize  slavery  or  prohibit  it 
within  their  own  borders,  in  the  event  of  their 
becoming  States.  This  right  was  known  as  "  squat- 
ter sovereignty."  The  newly-arrived  emigrant  of 


THE   POST-CONSTITUTIONAL  HISTOEY.        183 

any  territory,  usually  occupying  lands  of  the 
United  States  which  in  time  by  improvements  be- 
came his  own  under  the  laws  of  the  United  States, 
was  known  as  a  "  squatter."  The  South  calculated 
upon  the  superior  activity  of  its  own  number,  and 
somewhat  upon  their  aggressiveness,  to  hold  in 
awe  and  check  the  more  peaceably  inclined  set- 
tlers from  the  Eastern  States  and  from  Europe, 
and  that  by  the  terrorism  that  they  could  exercise 
they  could  thus  secure  a  large  proportion  not  only 
of  new  States  closely  contiguous  to  the  territory  of 
the  old  slave  States,  but  also  invade  some  of  the 
Northwestern  territory,  and  thus  prevent  the  power 
of  free  States  from  spreading  in  that  direction. 
The  first  rude  shock  of  disappointment  to  this 
calculation  came  through  the  finding  of  gold  in 
California.  This  caused  so  great  a  migration  from 
the  Eastern  States  to  the  Pacific  coast  of  strong 
and  fearless  men  that  within  the  very  territory 
that  they  supposed  to  be  exclusively  their  own,  and 
which  would  have  been  their  own  by  law  under  the 
old  Missouri  Compromise  had  it  not  been  repealed 
by  them,  the  Southern  States  found  their  pet  insti- 
tution utterly  outvoted  and  routed,  and  California 
made  application  as  a  free  State,  by  a  majority  so 
overwhelming  that  its  admission  in  1850  could  not 
be  rejected  by  the  then  pro-slavery  Congress  of 


184  CONSTITUTIONAL    HISTOEY. 

the  United  States.  However,  the  feelings  of  dis- 
appointment arising  from  the  result  of  this  mis- 
taken calculation  were  so  great,  together  with  the 
suspicion  that  it  had  been  largely  due  to  the  rapid 
accession  of  strength  of  the  Anti-slavery  party 
both  in  numbers  and  in  influence,  that  another 
compromise  bill  came  up  for  discussion,  by  which 
it  was  agreed  to  form  the  Territories  of  Utah  and 
New  Mexico  without  any  reference  to  slavery,  to 
admit  California  as  a  free  State,  to  pay  Texas 
$10,000,000  for  the  surrender  of  its  claims  to  the 
Territory  of  New  Mexico ;  together  with  the  pas- 
sage of  a  most  stringent  bill  to  return  fugitives 
from  justice  and  persons  escaping  from  the  service 
of  their  masters.  The  slavery  question  entered 
upon  a  new  phase  on  the  introduction  of  a  bill  to 
organize  the  Territory  of  Nebraska  in  February, 
1853.  During  the  few  years  intervening  from  1850 
to  1853  great  bitterness  arose  in  some  of  the 
Northern  States  on  the  subject  of  the  Fugitive  Slave 
bill.  The  provisions  of  the  bill  gave  to  United 
States  commissioners  the  power,  without  judge  or 
jury,  to  return  fugitives  from  justice,  and  prohibited 
State  courts  from  issuing  writs  of  habeas  corpus  for 
the  purpose  of  testing  the  question  of  the  right  of 
the  return  of  the  claimed  fugitive,  denying  to  the 
States  the  right  to  try  the  title  of  the  master  to  the 


THE   POST-CONSTITUTIONAL   HISTORY.        185 

slave.  Some  of  tlie  States  refused  to  enforce  the 
law,  notably  Massachusetts,  and  even  passed  laws  to 
prohibit  its  enforcement.  When  the  political  parties 
met  in  1852  the  question  of  slavery  was  the  main 
one  before  them.  Both  the  Whig  and  Democratic 
parties  vied  with  each  other  in  assurances  to  protect 
slavery  within  the  States,  the  Democratic  party 
declaring  that  Congress  had  no  power  under  the 
Constitution  to  control  this  "  domestic  institution  " 
of  the  Southern  States,  and  that  all  the  efforts  of 
the  Abolitionists  made  to  induce  Congress  to  inter- 
fere with  questions  of  slavery  had  a  tendency  to 
diminish  the  happiness  of  the  people  and  endanger 
the  stability  and  permanency  of  the  Union,  and 
they  pledged  themselves  to  abide  by  and  faithfully 
execute  the  acts  known  as  the  Compromise  measure 
settled  by  Congress,  and  more  especially  the  Fugi- 
tive Slave  act.  The  Whig  convention  declared  that 
the  series  of  act£  of  the  Thirty-second  Congress, 
known  as  the  Fugitive  Slave  law,  are  received  and 
acquiesced  in  by  the  Whig  party  in  the  United 
States  as  a  settlement  in  principle  and  substance 
of  the  dangerous  and  exciting  questions  which  they 
embrace,  and  they  promised  that  so  far  as  they 
were  concerned  they  would  maintain  them  and 
insist  upon  the  strict  enforcement  thereof.  There- 
fore, upon  the  main  question  of  slavery,  the  Demo- 


186  CONSTITUTIONAL    HISTOEY. 

cratic  and  "Wliig  parties,  the  two  leading  parties, 
alike  expressed  almost  in  the  same  terms  their 
determination  to  carry  out  faithfully  the  Com- 
promise measure  of  1850,  and  to  enforce  the 
Fugitive  Slave  law.  The  only  protest  of  any 
national  party  against  this  subserviency  to  the 
slave  power  came  from  the  Free  Soil  Democracy, 
which  nominated  Mr.  Hale,  of  New  Hampshire,  and 
Mr.  Julian,  of  Indiana,  respectively  for  President 
and  Vice-President,  and  in  their  platform  declared 
that  the  Fugitive  Slave  laws  were  repugnant  to  the 
Constitution,  to  the  spirit  of  Christianity,  and  to  the 
sentiment  of  the  civilized  world.  They  insisted  that 
no  permanent  settlement  of  the  slavery  question 
could  be  looked  for  except  in  the  practical  recogni- 
tion of  the  truth  that  slavery  is  sectional  and  freedom 
national.  The  Democratic  party  succeeded  in  elect- 
ing its  President  by  an  overwhelming  majority,  and 
Franklin  Pierce  and  William  E.  King,  the  nominees 
of  that  party,  were  elected  in  1852,  and  inaugu- 
rated on  March  4th,  1853,  respectively  as  President 
and  Vice-President  of  the  United  States. 

During  the  early  part  of  President  Pierce's 
administration,  the  organization  of  Kansas  and 
Nebraska  as  Territories  was  the  all-absorbing  sub- 
ject of  discussion.  The  proximity  of  Missouri  to 
both  of  those  territories,  Missouri  being  a  slave 


THE  POST-COXSTITUTIOXAL   HISTORY.        187 

State,  made  the  Southern  people  feel  themselves 
secure  that  they  could  control  the  organization  of 
the  Territories  if  to  the  Territories  were  left  the 
determination^  the  question  of  slavery  or  not  within 
their  limits,  and  a  large  number  of  pretended  settlers, 
known  as  border  ruffians,  immediately  migrated 
from  Missouri  into  Kansas  and  Nebraska,  and  or- 
ganized a  territorial  government  in  favor  of  slavery. 

The  bill  abrogating  the  Missouri  Compromise  of 
1820,  known  as  the  Kansas-Nebraska  bill,  was 
passed  in  May,  1854,  and  for  several  years  the  so- 
called  "  Kansas  war  "  was  carried  on  between  the 
partisans  of  slavery  and  anti-slavery — a  war  not 
merely  in  name,  but  which  involved  considerable 
bloodshed.  Congress  recognized  the  pro-slavery 
constitution,  known  as  the  Leavenworth  Constitu- 
tion, and  the  Governors  who  were  appointed  by 
President  Pierce  were  appointed  with  the  view  to 
influence  these  Territories  to  carry  out  the  pro- 
slavery  programme  by  the  organization  of  pro- 
slavery  Constitutions  for  their  admission  as  States. 

During  1854  the  claim  was  mado  that  the  Com- 
promise bill  of  1850  had  abolished  the  compromise 
of  1820,  and  that  therefore  the  new  States  to  be 
admitted  north  of  the  Missouri  line  could  be  invaded 
by  the  slave  power  as  well  as  those  south  of  the 
Missouri  line.  The  debates  during  Pierce's  admin- 


188  CONSTITUTIONAL    HISTORY. 

istration  in  Congress  resulted  in  a  division  between 
Northern  and  Southern  "Whigs,  the  Northern  Whigs 
calling  themselves  anti-Nebraska  men.  The  North- 
ern Democrats  were  evenly  divided  on  the  Kansas- 
Nebraska  measure,  and  the  Southern  Democrats 
acted  as  a  unit.  During  the  same  period  a  new 
party  came  into  existence,  known  as  the  Know- 
Nothings,  which  was  subsequently  called  the 
American  party.  As  its  name  indicates,  it  was 
opposed  to  elevating  to  office  any  but  natural  born 
American  citizens,  or  those  who  had  lived  long 
in  the  country.  It  was  strongly  anti- Catholic  in 
feeling.  For  a  short  time  it  became  a  national 
party,  and  in  1 855  carried  nine  of  the  State  elections, 
and  in  1856  nominated  Presidential  candidates.  In 
1856,  the  anti-Nebraska  party  adopted  the  name  of 
the  Republican  party.  It  was  largely  composed  of 
the  elements  of  the  Whig  party.  The  whole  of  the 
Northern  Whig  element  entered  into  it,  and  it 
obtained  considerable  accession  of  strength  from 
the  Democratic  party,  as  it  was  the  only  formidable 
organization  which  resisted  at  that  time  the  de- 
mands of  the  slave  power  as  to  the  spread  of  slavery 
into  the  new  Territories. 

The  conflict  in  Kansas  created  a  very  considerable 
amount  of  bitter  feeling  throughout  the  United 
States,  more  especially  in  the  Eastern  States,  where- 


THE   POST-CONSTITUTIONAL   HISTOEY.        189 

in  the  cry  of  "  bleeding  Kansas "  caused  a  large 
amount  of  money  to  be  collected,  which  was  ex- 
pended in  arms,  and  sent  to  the  settlers  of  Kansas 
and  Nebraska.  The  Territory  of  Kansas  was  divided 
into  a  pro-slavery  division  and  a  free  State  one,  and 
on  the  5th  of  September,  1855,  a  convention  at  To- 
peka  repudiated  all  that  had  been  done  in  favor  of 
slavery,  claimed  that  it  was  the  act  and  deed  of  Mis- 
sourians  alone,  and  determined  to  form  a  State  gov- 
ernment in  the  interest  of  freedom.  In  1856  the  free 
State  settlers  elected  State  officers  under  the  Topeka 
Constitution.  President  Pierce,  however,  recognized 
the  pro-slavery  Legislature,  and  placed  United 
States  troops  under  the  orders  of  the  Governor  to 
enforce  the  pro-slavery  laws,  of  the  territory. 

During  the  discussions  on  the  Kansas  question 
in  Congress  Senator  Sumner,  the  leading  Senator 
from  Massachusetts,  made  a  speech  which  was 
deemed  personally  offensive  to  Senator  Butler,  of 
South  Carolina,  and  a  representative  by  the  name 
of  Brooks,  also  from  South  Carolina,  struck  Senator 
Sumner  with  a  cane,  whilst  he  was  seated  in  his 
chair  in  the  Senate,  with  such  violence  that  the 
Senator  suffered  several  years  from  the  effects  of 
the  blow.  This  incident  naturally  increased  the 
bitterness  between  the  two  sections. 

Pending  the  struggle  in  Kansas  a  new  election 


190  CONSTITUTIONAL    HISTORY. 

for  President  of  the  United  States  was  held,  under 
which  again  the  Democratic  party  was  successful. 
James  Buchanan,  of  Pennsylvania,  and  John  C. 
Breckenridge,  of  Kentucky,  were  respectively 
elected  President  and  Vice-President  of  the  United 
States,  and  took  their  oaths  of  office  on  the  4th  of 
March,  1857.  "Within  a  few  days  after  the  election 
of  President  Buchanan,  the  Supreme  Court  of  the 
United  States,  in  the  Dred  Scott  case,  decided  that 
negroes  had  no  rights  or  privileges  but  such  as 
those  that  the  political  power  of  the  government 
might  choose  to  grant  to  them,  and  that  Congress 
had  no  more  right  to  prohibit  the  carrying  of  slaves 
into  any  State  or  Territory  than  it  had  to  prohibit 
the  carrying  of  horses  or  other  property,  whose 
secured  possession  was  .guaranteed  by  the  Constitu- 
tion. The  dissenting  justices,  on  the  other  hand, 
claimed  that  it  was  only  by  State  laws  that  the 
negro  was  made  property,  but  by  the  law  of  na- 
ture and  of  nations,  and  even  by  the  Constitution 
of  the  United  States,  there  was  no  recognition  of 
the  slave  as  property,  and  that  it  was  only  by  vir- 
tue of  municipal  law,  the  authority  of  which  was 
confined  to  the  territorial  boundary  of  the  State, 
that  any  human  being  could  be  regarded  as 
property,  and  the  rights  of  the  owner  were  limited 
to  the  territory  where  this  special  kind  of  property 


THE   POST-CO^STITUTIOXAL   HISTORY.        191 

was  recognized.  This  decision  startled  the  North- 
ern people  of  the  United  States,  and  a  renewed 
effort  was  made  to  wrest  Kansas  and  Nebraska  from 
the  slave  power.  The  South  knew  that  if  in  this 
struggle  Kansas  and  Nebraska  were  taken  from 
them,  their  hopes  successfully  to  compete  against 
the  Northern  States,  and  to  maintain  the  slave 
power  rested  either  in  the  acquisition  of  Cuba  by 
the  Union  as  a  territory  out  of  which  to  form  new 
States,  the  annexation  of  part  of  Mexico,  or  the 
whole  of  it,  so  as  to  carve  out  new  slave  States,  or, 
on  secession  from  the  Union,  and  the  organization 
of  an  independent  government  in  which  slavery 
could  be  secured  from  every  possible  attack. 

The  Kansas  struggle  lasted  until  after  the  elec- 
tion of  Mr.  Lincoln  as  President  of  the  United 
States.  Two  constitutions  had  been  passed  in 
Kansas,  one  known  as  the  Lecompton  Constitution, 
with  slavery,  which  claimed  to  have  6,000  majority ; 
but  the  free  State  settlers  refused  to  vote  on  the 
ground  that  they  were  not  permitted  to  vote  against 
the  Constitution,  the  only  form  of  ballot  being  one 
either  for  the  Constitution  with  slavery  or  for  the 
Constitution  without  slavery.  The  President  of  the 
Senate  insisted  upon  the  admission  of  Kansas  as  a 
slave  State.  The  House  was  willing  to  admit  Kan- 
sas with  the  proviso  that  the  Constitution  should 


192  CONSTITUTIONAL    HISTORY. 

again  be  submitted  to  the  popular  vote.  No  agree- 
ment was  arrived  at,  and  some  time  in  1859  a  new 
Constitution  was  submitted  to  the  people  in  Kansas 
known  as  the  Wyaiidotte  Constitution,  which  pro- 
hibited slavery,  and  received  a  majority  of  4,000  in 
its  favor. 

The  Kansas  struggle,  lasting  as  it  did  through 
the  whole  of  Buchanan's  administration,  caused 
party  lines  to  divide  sharply  in  1860  upon  the  ques- 
tion of  slavery.  All  other  questions  were  merged 
in  that  all-important  one.  The  Southern  States, 
although  they  had  control  of  the  Government  and 
control  of  the  Supreme  Court  of  the  United  States, 
felt  themselves  beaten  at  every  point  by  the  growth 
of  a  popular  sentiment  against  slavery  which  proved 
superior  to  their  astuteness  as  politicians,  the  more 
contentious  character  of  their  population,  aided  by 
threats  of  secession  and  war  in  the  event  of  the 
failure  on  the  part  of  the  North  completely  to  sub- 
mit to  their  dictates.  Although  they  succeeded 
in  forcing  measures  through  Congress,  they  were 
visibly  gradually  losing  strength.  The  Democratic 
party  met  in  Charleston,  South  Carolina,  on  the 
23d  of  April,  1860,  and  divided  there  into  two  wings. 
At  this  distance  of  time  the  difference  between  the 
two  wings  of  the  Democratic  party  on  the  slavery 
question  does  not  seem  to  have  been  a  very  serious 


THE  POST-CONSTITUTIONAL   HISTORY.        193 

one.  The  Southern  wing  affirmed  its  confidence  in 
the  correctness  of  the  Dred  Scott  decision,  and  in 
terms  said  that  neither  Congress  nor  the  Territorial 
Legislatures  had  a  right  to  prohibit  slavery  in  [the 
Territories.  The  Douglas  Democrats  simply  re- 
fused to  admit  the  conclusion,  although  they  as- 
serted the  premises  of  the  Dred  Scott  decision, 
said  that  it  was  just  and  final,  and  that  they  would 
abide  by  it.  The  Douglas  platform  was  adopted,  and 
many  of  the  Southern  delegations  then  withdrew. 
The  Democratic  convention,  after  the  withdrawal  of 
the  delegations,  nominated  Stephen  A.  Douglas  for 
President  and  H.  Y.  Johnson  for  Vice-President. 
The  seceding  delegates  nominated  J.  C.  Brecken- 
ridge,  of  Kentucky,  and  Joseph  Lane,  of  Oregon. 
A  Constitutional  Union  party — a  new  name  for  the 
former  American  party — nominated  John  Bell  and 
Edward  Everett.  At  the  election  in  November 
every  Northern  State,  with  the  exception  of  New 
Jersey,  elected  Republican  electors,  and  thus  se- 
cured the  election  of  Lincoln  as  President  of  the 
United  States  upon  a  platform  declaring  that  free- 
dom was  the  normal  condition  of  the  Territories, 
which  Congress  was  bound  to  preserve  and  defend. 
Immediately  after  the  election  of  Lincoln  was  placed 
beyond  doubt,  the  South  Carolina  Legislature,  in 
1860,  called  a  State  Convention,  which  passed  almost 
9 


194  CONSTITUTIONAL    HISTORY. 

unanimously  an  ordinance  of  secession,  and  ap- 
pointed commissioners  to  treat  with  the  other  slave 
States  for  a  withdrawal  from  the  Union,  and  to 
treat  with  the  United  States  Government  for  a  di- 
vision of  the  national  property  and  of  the  public 
debt.  By  the  end  of  February,  1861,  Florida,  Mis- 
sissippi, Louisiana  and  Texas,  as  well  as  Georgia 
and  Alabama,  had  likewise  passed  ordinances  of 
secession.  Tennessee,  North  Carolina,  Arkansas, 
Kentucky  and  Missouri  were  still  wavering  and 
awaiting  the  current  of  events.  President  Buchanan, 
when  Congress  met,  detailed  the  condition  of  affairs 
in  the  South,  denied  the  right  of  secession,  but  ex- 
pressed himself  as  powerless  to  prevent  the  pas- 
sage of  the  resolutions,  and  intimated  doubts  as  to 
the  power  of  Congress  to  make  war  upon  the  States. 
The  session  was  mainly  occupied  with  attempts  at 
compromise.  The  Crittenden  Compromise  was 
one  which  was  most  before  Congress,  and  had  the 
greatest  chance  of  success.  The  main  provisions  of 
the  bill  were  that  slavery  should  be  prohibited 
north  of  parallel  36°  30',  recognized  and  never  in- 
terfered with  by  Congress  south  of  that  line,  and 
that  the  Federal  Government  should  pay  for  all 
slaves  rescued  from  officers  after  arrest.  These 
provisions  were  intended  to  be  made  part  of  the 
Constitution  of  the  United  States,  and  were  never 


THE  POST-CONSTITUTIONAL  HISTORY.        195 

to  be  altered  or  amended  by  the  Union  as  it  exist- 
ed. The  Republicans  in  Congress  refused  to  vote 
for  this  measure,  and  the  Southern  members  there- 
fore refused  to  entertain  it.  In  February,  1861,  a 
Peace  Congress  was  convened  at  the  request  of  the 
Virginia  Legislature,  and  met  at  Washington.  It 
adopted  and  reported  a  number  of  resolutions  for 
congressional  action,  all  of  which  were  refused  to 
be  entertained  by  Congress.  An  amendment  to  the 
Constitution,  however,  was  recommended  by  Con- 
gress, which  forbade  Congress  ever  to  interfere  with 
slavery  in  the  States.  Meanwhile  a  convention  of 
delegates  from  the  seceding  States  was  called,  which 
met  at  Montgomery,  and  organized  the  Government 
which  was  known  during  the  war  as  the  Confeder- 
ate States  of  America.  It  in  many  respects  copied 
the  Constitution  of  the  United  States ;  it  in  words 
recognized  slavery;  it  extended  the  term  of  the 
President's  office ;  it  prohibited  tariffs  for  any  pur- 
poses other  than  revenue.  Jefferson  Davis  and 
Alexander  H.  Stephens  were  chosen  President  and 
Vice-President.  A  Cabinet  was  appointed,  Depart- 
ments were  organized,  and  immediate  preparation 
was  made  to  carry  on  war. 

As  a  sufficient  number  of  Southern  delegates  had 
now  withdrawn  to  give  to  the  Republicans  an  un- 
doubted majority  in  both  Houses  of  Congress, 


196  CONSTITUTIONAL    HISTORY. 

Kansas  was  admitted  immediately  with  a  free  Con- 
stitution ;  Nevada,  Colorado,  and  Dakotah  were 
organized  as  Territories,  a  new  tariff  law  was 
passed,  mainly  in  the  interest  of  the  Eastern  States 
and  Pennsylvania,  as  the  opposition  of  the  free- 
trade  Southern  members  being  withdrawn,  all 
organized  opposition  to  a  protective  tariff  was  for 
the  time  being  at  an  end. 

This  brings  us  to  the  era  of  the  administration 
of  Mr.  Lincoln  and  the  breaking  out  of  the  war. 
President  Lincoln  was  inaugurated  on  the  4th  of 
March,  1861.  His  inaugural  message  expressed  a 
determination  to  relieve  Fort  Sumter,  and  as- 
serted in  unambiguous  terms  the  right  of  the  Union 
to  prevent  its  own  destruction.  The  attempt  to 
resupply  Fort  Sumter  in  Charleston  harbor  pre- 
cipitated an  attack  on  April  13th,  1861,  by  South 
Carolina,  which  inaugurated  the  Civil  War.  Fort 
Sumter  surrendered  on  the  14th  of  April,  and  on 
the  15th  the  President  issued  his  first  call  for 
troops,  which  was  immediately  responded  to  by 
the  Northern  States.  An  insignificant  remnant 
of  the  Democratic  party  remained  true  after  hos- 
tilities actually  began  .to  the  idea  that  secession 
was  a  constitutional  right,  and  that  there  was  no 
power  in  the  United  States  Government  to  coerce 
a  State.  "Within  a  fortnight  after  the  breaking  out 


THE  POST- CONSTITUTIONAL   HISTORY.        197 

of  the  war,  Virginia,  North  Carolina,  Tennessee  and 
Arkansas  threw  in  their  fortunes  with  the  South  ; 
Delaware,  Maryland,  Kentucky  and  Missouri,  re- 
mained, with  small  majorities,  loyal  to  the  Union. 

Early  during  the  war  the  question  of  the  status 
of  the  slave  became  a  very  important  one.  Gen. 
Fremont,  having  control  of  the  Missouri  depart- 
ment, proposed  to  free  the  slaves  of  Missouri ;  but 
his  order  to  that  effect  was  overruled  by  the  Presi- 
dent. Gen.  Butler  was  more  successful  by  a  happy 
euphemism  in  declaring  the  slaves  to  be  contraband 
of  war,  wherein  he  had  the  support  of  the  Secre- 
tary of  War. 

In  September,  1862,  President  Lincoln  issued  a 
proclamation  that  in  the  event  of  the  rebels  re- 
fusing to  return  to  their  allegiance  by  the  1st  of 
January,  1863,  he  would  then  issue  an  emancipa- 
tion proclamation.  Accordingly,  on  the  1st  of  Jan- 
uary, 1863,  during  a  period  of  extreme  depression 
and  doubt  as  to  the  ultimate  success  of  the  Union 
arms  in  suppressing  the  rebellion,  the  Federal 
armies  having  met  in  1862  with  many  serious  re- 
verses, the  proclamation  was  issued  by  which  the 
slaves  in  the  States  then  in  rebellion  were  declared 
to  be  free.  The  slaves  held  in  States  not  in  re- 
bellion were  not  affected  by  this  proclamation,  an 
amendment  to  the  Constitution  being  necessary  to 


198  CONSTITUTIONAL    HISTOEY. 

accomplish  that  result  as  to  the  "  property  "  of  loyal 
citizens  in  those  States.  The  emancipation  proc- 
lamation, after  declaring  the  districts  within  which 
it  was  to  be  operative,  was  couched  in  a  spirit  of 
humanity  to  prevent  an  insurrection  of  slaves  by 
enjoining  them  "  to  abstain  from  all  violence,  un- 
less in  necessary  self-defence,"  and  promised  them 
that  "such  as  were  fitted  would  be  taken  into  the 
armed  service  of  the  United  States,  to  garrison 
forts,  stations,  and  other  places,  and  to  man  vessels 
of  all  sorts  in  said  service." 

The  difficulty  in  creating  the  necessary  loans,  in 
the  early  period  of  the  war,  and  a  fear  to  dampen 
the  ardor  of  the  North  by  burdensome  taxation, 
caused  the  passage  of  a  Legal  Tender  bill,  by  which 
the  currency  of  the  United  States  had  an  enforced 
circulation — a  measure  of  doubtful  constitution- 
ality, but  which,  as  the  Supreme  Court  of  the 
United  States  subsequently  declared,  was  a  justifi- 
able exercise  of  the  war  power.  A  national  banking 
system  was  created,  by  which  the  banks  were  re- 
quired to  invest  their  capital  representing  circula- 
tion in  United  States  loans,  so  that  a  large  amount 
of  the  United  States  Government  bonds  was  com- 
pulsorily  absorbed  in  that  manner. 

During  the  four  years  that  the  war  lasted,  two 
States  were  admitted  into  the  Union :  West  Virginia, 


THE   POST- CONSTITUTIONAL   HISTORY.        199 

carved  out  of  Virginia  proper,  and  Nevada.  In 
1864  the  Fugitive  Slave  law  was  repealed.  At- 
tempts were  made  in  February,  1865,  by  the  Presi- 
dent to  make  peace  with  the  Southern  States  on 
the  condition  of  their  return  to  the  Union.  Al- 
though no  authorized  version  of  the  negotiations 
has  ever  been  given  to  the  public,  it  was  conceded 
that  with  the  single  exception  of  consent  to  the 
abolition  of  slavery,  and  submission  to  the  author- 
ity of  the  Union  on  the  part  of  the  South,  every 
condition  that  the  Southern  States  could  ask  would 
be  submitted  to  by  the  North,  including  the 
adoption  of  the  Southern  debt  and  the  reimburse- 
ment to  the  Southern  slaveholder  for  slaves  lost. 
But  the  Southern  leaders  madly  rejected  this 
proposition. 

The  war  at  that  time,  in  consequence  of  Sherman's 
march  through  the  Southern  States,  and  the  pres- 
sure upon  Gen.  Lee's  army  exercised  by  Gen. 
Grant's  forces,  was  rapidly  drawing  to  a  close  in 
favor  of  the  Union. 

Lincoln  was  in  1864  reflected  President  of  the 
United  States,  and  inaugurated  on  the  4th  of 
March,  1865. 

In  April,  1865,  the  surrender  of  General  Lee, 
followed  quickly  by  the  surrender  of  General  John- 
son, practically  ended  the  war.  On  April  14  Presi- 


200  CONSTITUTIONAL    HISTOEY. 

dent  Lincoln  was  assassinated  at  a  theatre  in 
Washington,  and  Andrew  Johnson,  who  had  been 
elected  as  Vice-President,  became,  on  the  loth  of 
April,  the  President  of  the  United  States.  This 
unfortunate  assassination  of  a  President  in  whose 
wisdom  and  moderation  the  people  of  the  United 
States  had  very  great  confidence,  added  materially 
to  the  difficulty  of  dealing  with  the  Southern  States 
then  lately  in  rebellion.  To  admit  them  as  States  in 
the  full  possession  of  their  sovereignty,  with  the 
negroes  disfranchised,  although  liberated,  was  to 
place  the  negro  once  more  in  the  power  of  his 
former  owner,  and  therefore  to  some  degree  a 
violation  of  the  implied  pledge  given  by  the  United 
States  to  the  negro  race,  both  by  the  emancipation 
proclamation  and  by  the  use  of  thousands  of  able- 
bodied  negroes  in  the  army  and  navy,  that  the 
promise  of  freedom  should  be  followed  by  protect- 
ing them  from  oppression  thereafter.  In  any  event, 
the  Government  was  called  upon  to  exercise 
a  guardianship  to  prevent  their  reenslavement 
or  such  deprivation  of  social  rights  as  would 
amount  to  a  perpetual  condition  of  servitude  of  the 
race.  On  the  other  hand,  the  United  States  Con- 
stitution had  made  no  provision  for  the  condition 
of  affairs  which  the  war  had  brought  about.  To 
extend  the  right  of  suffrage  at  once,  without  a 


THE   POST-CONSTITUTIOXAL   HISTORY.        201 

period  of  education  intervening,  to  the  lowest  type 
of  a  laboring  population,  made  by  the  system  of 
slavery  an  entirely  irresponsible  class  of  human 
beings,  was  full  of  danger  to  all  vested  property 
interests  and  to  civilization  itself  in  the  States 
where  they  preponderated.  The  right  of  suffrage 
was  always  regulated  by  the  States  themselves  ;  the 
States,  as  sovereigns,  had  a  right  to  the  organization 
of  their  own  governmental  functions  without  inter- 
ference by  the  federal  power  except  that  general 
provision  which  made  it  the  duty  of  the  national 
Government  to  see  to  it  that  the  form  of  government 
adopted  by  the  States  was  republican  in  character. 
For  the  purpose  of  exercising  a  guardianship  over 
the  negroes,  and  to  prevent  their  being  unjustly  or 
harshly  dealt  with  by  the  Southerners  who  were 
formerly  slaveholders,  the  Freedmen's  Bureau  was 
organized  immediately  after  the  close  of  the  war, 
with  agents  in  every  Southern  State,  for  the  pur- 
pose of  adjudicating  upon  the  rights  of  the  negroes 
and  to  prevent  their  being  wronged. 

President  Johnson,  who  had  expended  his  adult 
life  in  a  slave  State,  and  who  was  a  strict  construc- 
tionist  of  the  Constitution,  refused  to  recognize  the 
methods  of  reconstruction  which  Congress  saw  fit 
to  adopt ;  he  appointed  provisional  Governors  for 

the  States  lately  in  rebellion,  and  declared  his  pur- 
9* 


202  CONSTITUTIONAL  HISTORY. 

pose  that  their  terms  of  office  should  endure  only 
until  a  permanent  government  could  be  organized. 
The  passage  of  the  Freedmen's  Bureau  bill,  which 
was  vetoed  by  the  President,  and  of  the  Civil  Eights 
bill,  which  was  also  vetoed,  but  both  of  which, 
nevertheless,  being  enacted  by  a  congressional 
overriding  of  the  vetoes,  created  an  antagonism  be- 
tween the  Eepublican  majority  in  the  legislative 
body  and  the  President,  which  soon  ripened  into  an 
open  rupture. 

The  fourteenth  amendment  was  adopted  by  both 
houses  in  June,  1865.  The  Civil  Eights  bill  de- 
clared freedmen  citizens  of  the  United  States.  The 
reasons  against  this  declaration  were  sound  in 
themselves,  because  it  admitted  to  the  rights  of 
citizenship  a  large  number  of  persons  whose  prior 
condition  of  servitude  and  enforced  labor  made 
them  extremely  dangerous  citizens.  As  the  right 
to  vote  implies  not  only  the  right  of  the  voter  to 
protect  himself  against  the  aggression  of  others, 
but  also  involves  the  power,  through  the  instru- 
mentality of  taxation,  which  is  placed  in  the  official 
hands  created  by  the  voters,  to  confiscate  the  prop- 
erty of  others,  it  was  apprehended  by  many  that 
demagogues  and  adventurers  would  win  the  free- 
men by  illusory  promises  of  personal  benefits  to 
give  them  their  votes,  and  that,  by  the  creation  of 


THE   POST-CONSTITUTIONAL   HISTORY.        203 

public  debts  and  the  exercise  of  the  power  of  tax- 
ation, they  would  mercilessly  confiscate  the  prop- 
erty of  citizens  subjected  to  their  sway. 

Another  Freedmen's  Bureau  bill  passed  both 
houses  in  the  summer  of  1866.  This  was  also 
vetoed  by  the  President,  but  finally  passed  over  the 
veto  and  became  a  law.  When  Congress  met  in 
December,  1866,  the  conflict  between  the  Legislative 
department  of  the  Government  and  the  Executive 
became  so  acrimonious,  measures  passed  by  Con- 
gress were  so  constantly  vetoed  by  the  President, 
that  a  determination  was  formed  on  the  part  of 
Congress  to  remove  the  President  by  impeachment. 

In  January,  1867,  a  bill  was  passed  which  took 
from  the  President  the  power  to  proclaim  a  general 
amnesty.  The  Army  appropriation  bill  contained  a 
provision  by  which  the  President  was  virtually 
divested  of  his  command  of  the  army,  by  making  it 
imperative  that  all  his  orders  should  be  given  to 
the  General  of  the  army  who  could  not  be  removed 
without  the  previous  approval  of  the  Senate.  The 
General  of  the  army  at  that  time  was  General  Grant, 
who  was  relied  upon  as  antagonistic  to  President 
Johnson  and  loyal  to  Congress. 

Nebraska  was  admitted  that  year  as  a  State.  A 
new  bill  was  passed  to  provide  governments  for  the 
States  which  lately  had  been  in  insurrection.  The 


204  CONSTITUTIONAL   HISTOEY. 

States  were  divided  into  military  districts,  each, 
under  the  goveinment  of  a  General.  This  military 
government  was  to  continue  until  a  State  Conven- 
tion chosen  by  all  those  who  had  previously  been 
declared  by  Congress  to  be  citizens,  and  therefore 
negroes  included,  should  form  a  State  government, 
and  ratify  the  fourteenth  amendment.  The  ratifi- 
cation, therefore,  of  the  fourteenth  amendment  was 
a  compulsory  process,  and  can  scarcely  be  deemed 
the  voluntary  act  of  the  States  which  had  previously 
been  in  rebellion. 

The  Tenure  of  Office  bill  was  passed  over  the 
President's  veto,  taking  from  the  President  the 
power  of  removal  without  the  consent  of  the  Senate. 
This  bill  declared  it  to  be  a  high  misdemeanor  to 
make  any  such  removal  except  with  the  consent  of 
the  Senate. 

During  the  summer  following  this  Congress, 
Edwin  H.  Stanton,  who  had  been  Secretary  of  War, 
was  asked  by  the  President  to  resign.  Stanton 
refused  to  resign.  He  was  thereupon  suspended 
under  the  provisions  of  the  Tenure  of  Office  bill,  and 
Gen.  Grant  was  appointed  Secretary  of  War  ad 
interim.  On  the  14th  of  January,  1863,  the  Senate 
refused  to  agree  to  Stanton's  removal.  Gen.  Grant 
vacated  the  office,  and  Stanton  was  reinstated.  The 
President  thereupon  again  removed  Stanton  and 


THE   POST-CONSTITUTIONAL   HISTORY.        205 

appointed  Gen.  Thomas  in  his  place.  Thomas 
accepted,  but  Stanton  refused  to  quit.  Both  the 
Senate  and  House  being  in  session,  and  the  Pres- 
ident having  clearly  violated  the  provisions  of  the 
Tenure  of  Office  bill,  the  House  resolved  to  impeach 
him  before  the  Senate,  and  on  the  5th  of  March  the 
trial  of  the  impeachment  was  begun.  This  was  the 
first  and  only  impeachment  of  a  President  of  the 
United  States  under  the  power  granted  by  the  Con- 
stitution. In  the  Senate  the  vote  stood  35  for  con- 
viction and  19  for  acquittal.  The  requisite  two- 
thirds  majority,  therefore,  not  having  been  obtained, 
a  verdict  for  acquittal  was  entered,  and  the  im- 
peachment trial  fell  through. 

The  political  contest  for  the  Presidency  turned 
mainly  upon  the  reconstruction  legislation.  Grant 
and  Colfax  were  nominated  by  the  Republicans  in 
1868  ;  Seymour  and  Blair  by  the  Democrats.  The 
election  resulted  overwhelmingly  in  favor  of  the 
Republican  party.  On  the  20th  of  February  fol- 
lowing the  fifteenth  amendment  to  the  Constitution, 
guaranteeing  the  right  of  suffrage  without  regard 
to  race,  color,  or  previous  condition  of  servitude, 
was  adopted  by  Congress.  On  the  following  4th 
of  March  Grant  and  Colfax  were  sworn  into  office. 

During  President  Grant's  first  term  of  office  the 
reconstruction  of  the  Southern  States  proceeded 


206  CONSTITUTIONAL    HISTOEY. 

rapidly  under  the  plan  laid  down  by  Congress.  The 
greatest  part  of  the  time  of  Congress  was  taken  up 
in  legislation  to  secure  to  the  negroes  their  rights, 
armed  conflicts  having  taken  place  at  various  parts 
of  the  Southern  States  between  negroes  and  whites, 
arising  from  the  enforced  equality  of  the  former 
and  the  inveterate  prejudices  of  the  latter  against 
their  recognition  as  citizens,  and  to  the  un- 
fortunate selections  of  Governors  and  legis- 
lators in  the  reconstructed  States,  by  which  men 
known  as  "  carpet-baggers,"  adventurers  from  the 
Northern  States,  who  went  to  the  South  for  the  pur- 
pose of  securing  office,  and  in  the  troubled  condition 
of  affairs  foisted  themselves  into  positions  of  import- 
ance and  trust,  which  they  vilely  and  outrageously 
abused.  As  under  the  amendments  to  the  Constitu- 
tion the  debts  of  the  States  in  rebellion  incurred  for 
the  purposes  of  the  war,  and  the  whole  of  the  Con- 
federate national  debt  were  irrevocably  repudiated 
and  extinguished,  the  States  were  at  the  time  of  the 
reorganization  free  from  all  debts,  except  such  as  had 
been  created  anterior  to  the  rebellion.  This  offered 
for  the  creation  of  new  public  debts  a  great  quarry 
for  plunder  to  the  legislative  and  executive  officers 
who  had,  during  this  period,  become  possessed  of 
political  power ;  and  debts  were  created  in  a  most 
reckless  manner  ;  bonds  were  issued  amounting  to 


THE   POST-CONSTITUTIONAL   HISTOEY.        207 

many  millions  of  dollars,  for  which  the  States  never 
received  any  return,  and  the  proceeds  of  which 
were  in  the  main  embezzled  and  wasted.  This 
condition  of  affairs  created,  to  a  very  considerable 
degree,  a  righteous  indignation  on  the  part  of  the 
Southern  propertied  classes,  as  these  Governors 
and  legislators  not  only  rested  their  tenure  to  offices 
upon  the  votes  of  the  most  ignorant  and  depraved 
part  of  the  population  of  the  Southern  States,  but 
also  had  at  their  beck  and  call  the  army  of  the 
United  States  to  enforce  obedience  as  against  citi- 
zens who  had  a  stake  in  the  community,  and  who 
were  compelled  quietly  to  submit  to  seeing  part  of 
their  property  confiscated  by  the  taxing  power,  and 
the  remainder  mortgaged,  by  the  debt  creating 
power. 

The  Alabama  settlement  with  England  was  the 
most  important  step  of  the  Grant  administration  as 
to  foreign  policy. 

The  incidents  connected  with  Gen.  Grant's  first 
administration,  of  corruption  on  the  part  of  the 
office-holders  in  the  Southern  States,  and  the  class 
of  people  to  whom  he  gave  his  confidence  in  the 
Northern  States,  created  considerable  reaction 
against  the  plan  of  Congressional  reconstruction 
as  practically  carried  out,  and  divided  the  Re- 
publican party  into  two  divisions.  Horace  Gree- 


208  CONSTITUTIONAL   HISTORY. 

ley,  the  editor  of  the  Tribune,  was  at  the  head  of 
the  wing  against  the  administration  party,  and  Gen. 
Grant  remained  the  representative  of  the  bulk  of 
the  Republican  party.  In  1872  the  Republican 
party  renominated  Grant  for  President,  and 
Wilson  for  Vice-President ;  and  the  Liberal 
Republicans  nominated  Horace  Greeley,  of  New 
York,  for  President,  and  B.  Gratz  Brown,  of 
Missouri,  for  Vice-President.  The  Democratic 
party,  at  a  subsequent  convention,  adopted  the 
Liberal  Republican  candidates ;  but  the  election 
resulted  overwhelmingly  in  favor  of  the  Republic- 
ans, and  President  Grant's  second  term  of  office 
began. 

One  of  the  instruments  of  oppression  that  had 
been  devised  with  much  ingenuity  for  the  pur- 
pose of  perpetuating  the  power  of  the  adven- 
turers who  succeeded  in  obtaining  control  of  the 
Government  in  the  Southern  States  was  what  was 
called  a  Returning  Board,  a  commission  which 
was  originally  appointed  by  the  Governors  of  the 
States  with  or  without  the  consent  of  the  Legisla- 
tive department,  which  had  the  power  to  perpetuate 
its  own  existence  by  filling  by  couptation  vacancies 
in  its  own  board,  and  which  had  the  power  to  re- 
ject the  votes  of  whole  districts  where,  according 
to  the  finding  of  the  commission,  intimidation  had 


THE  POST-COISTSTITUTIOXAL   HISTOEY.        209 

been  exercised.  This  power  substantially  gave  to 
these  Eeturning  Boards  the  determination  of  an 
election  ;  however  large  the  majority  adverse  to 
their  party  might  prove  to  be  in  certain  districts, 
it  could  be  wholly  rejected  on  the  mere  ground  of 
intimidation,  of  which  they  themselves  were  to  be 
the  judges,  and  so  change  the  result. 

During  Gen.  Grant's  second  term  of  office,  the 
question  of  the  resumption  of  specie  payments  and 
the  payment  of  the  national  debt  in  gold  became 
the  source  of  most  of  the  conflicts  in  Congress. 
The  veto  by  Gen.  Grant  of  a  currency  bill  by  which 
an  attempt  was  made  on  the  part  of  a  majority  in 
Congress  to  increase  the  irredeemable  currency  of 
the  United  States,  was  the  first  favorable  sign  of  re- 
turning financial  reason,  and  gave  a  strong  impetus  to 
a  regression  to  a  sound  basis  for  the  national  currency 
by  its  eventual  redemption  in  coin,  and  of  a  full  and 
complete  recognition,  not  in  words  only,  of  the  rights 
of  the  public  creditor  to  payment  in  specie.  During 
the  war  the  currency  of  the  United  States  fell,  as 
calculated  in  specie,  to  about  thirty-six  cents  on  the 
dollar — gold  stood  at  one  time  at  270.  At  the  .time 
of  the  suppression  of  the  rebellion  the  premium  on 
gold  had  fallen  to  below  30.  As  the  rise  in  values 
of  land  counted  in  currency  created  a  fictitious 
prosperity  which  was  interfered  with  by  the  fall  in 


210  CONSTITUTIONAL    HISTORY. 

prices  consequent  upon  a  return  of  the  currency  to 
its  specie  value,  vast  numbers  of  people  through- 
out the  United  States,  and  more  especially  in  the 
Western  States,  were  led  to  the  conviction  that  the 
source  of  their  prosperity  was  the  issue  of  irredeem- 
able currency,  and  that  no  greater  mischief  could 
be  done  to  the  permanent  prosperity  of  the  nation 
than  a  return  to  specie  payments,  or  the  payment  of 
the  Government  creditor  in  coin.  This  financial 
and  politico-economical  error  so  pervaded  the  com- 
munity that  it  was  for  a  considerable  period  of  time 
questionable  whether  within  any  reasonable  period 
the  United  States  Government  could  return  to  a 
sound  financial  basis;  and  it  was  only  through 
the  persistent  and,  in  many  respects,  the  self-sacri- 
ficing efforts  of  men  scientifically  educated  in  po- 
litical economy  that  State  after  State  wherein  party 
lines  were  drawn  on  this  question  were  brought 
back  to  take  a  more  rational  view  of  governmental 
finance,  and  to  acquiesce  in  the  slight  individual 
inconveniences  which  a  return  to  specie  payments 
would  entail. 

The  crisis  of  1873,  followed  by  a  period  of  extreme 
depression  of  values  in  1874, 1875,  1876,  added  very 
considerably  to  the  so-called  Greenback  or  Non-re- 
demptionist  force,  and  was  an  additional  cause  in 
delaying  a  return  to  specie  payments.  Congress  had 


THE   POST-COISTSTITUTIOXAL    HISTORY.         211 

declared  in  1875  that  on  the  1st  of  January,  1879, 
the  resumption  of  specie  payments  should  take 
place.  Notwithstanding  the  opposition  to  this  plan 
of  resumption,  it  went  successfully  into  operation  on 
the  1st  of  January,  1879.  This  happy  result  was 
aided  by  fortune  more  than  by  the  wisdom  of  the 
politicians,  the  country  having  in  1877  experienced, 
by  reason  of  an  extraordinarily  good  crop  and  a  fail- 
ure of  the  European  crop,  a  revival  of  industry, 
followed  in  1878  by  a  further  increase  of  national 
wealth  by  another  extraordinarily  good  crop  and  an- 
other failure  of  crops  in  Europe.  These  two  events 
turned  the  tide  of  gold  in  the  direction  of  the  United 
States,  producing  the  double  effect  of  both  increas- 
ing the  facilities  of  the  United  States  Government 
to  resume,  and  greatly  reducing  the  ranks  of  the 
adversaries  to  resumption  which  had  been  largely 
strengthened  by  the  depression  resulting  from  the 
crisis  of  1873. 

In  1876  the  Democrats  nominated  Samuel  J. 
Tilden,  of  New  York,  and  the  Republicans  Ruther- 
ford B.  Hayes,  of  Ohio,  for  the  office  of  President 
of  the  United  States.  The  election  of  1876— Colo- 
rado and  Nebraska  having  in  the  interim  become 
States  in  the  Union — required  for  a  choice  185 
electoral  votes.  Mr.  Tilden  had  184  unquestioned 
electoral  votes.  Mr.  Hayes  had  165  unquestioned 


212  CONSTITUTIONAL    HISTORY. 

electoral  votes.  Thus  Mr.  Tilden  required  but  one 
vote  to  constitute  him  President,  and  Mr.  Hayes 
twenty.  The  votes  that  were  questioned  were  one 
from  Oregon,  the  Governor  of  which  certified  to 
one  Democratic  and  two  Republican  electors 
arising  from  a  disqualification  on  the  part  of  one  of 
the  electors,  although  unquestionably  the  disquali- 
fied elector  had  been  elected;  seven  from  South 
Carolina,  as  to  the  vote  of  which  there  was  at  first 
a  very  considerable  amount  of  doubt,  and  was  made 
the  subject  matter  of  litigation  within  the  State, 
the  vote,  however,  was  certified  for  the  Republican 
electors ;  four  from  Florida,  and  eight  from  Louis- 
iana. The  popular  majority  in  Louisiana  and 
Florida  was  undoubtedly  in  favor  of  the  Demo- 
cratic electors.  It  was  only  through  the  instru- 
mentality of  the  machinery  known  as  the  Return- 
ing Board  that  the  vote  could  be  changed  into  a 
Republican  legal  majority.  The  Returning  Board 
of  Louisiana  was  composed  of  men  whose  former 
action  had  already  been  discredited  by  a  Republi- 
can Congress  under  an  investigation  carried  on  by 
a  Republican  committee.  The  electoral  vote  of 
Florida  was  declared  by  the  State  authorities  them- 
selves to  have  been  illegally  cast  for  the  Repub- 
licans, and  the  State,  by  the  only  means  in  its 
power,  deliberately  recalled  the  vote  of  the  State 


THE   POST-CONSTITUTIONAL   HISTORY.        213 

before  the  vote  was  counted,  and  also  duly  com- 
missioned Democratic  electors,  whose  votes  were 
cast  in  favor  of  Mr.  Tilden. 

In  Louisiana  the  manipulations  of  the  Returning 
Board  forms  one  of  the  most  humiliating  chapters  of 
fraud  in  American  politics ;  the  certification  in  favor 
of  the  Louisiana  Eepublican  electors,  though  regular 
in  form,  was  created  by  an  instrumentality  which, 
if  generally  adopted  throughout  the  United  States, 
would  make  a  farce  of  popular  elections.  Although 
these  manipulations  of  results  gave  a  colorable 
right,  before  the  vote  was  declared,  to  Mr.  Hayes  as 
the  elected  President  of  the  United  States,  yet  Mr. 
Tilden,  who  had  unquestionably  received  by  far  the 
greater  popular  vote,  would,  in  the  absence  of  any 
Returning  Board  machinery,  have  undoubtedly  been 
declared  the  President  of  the  United  States.  In 
this  situation,  both  parties  claiming  the  Presidency, 
it  was  apprehended  that  another  civil  war  might  re- 
sult if  no  means  were  found  by  which  this  condition 
of  affairs,  unprovided  for  by  the  Constitution,  could 
be  temporarily  dealt  with.  The  Constitution  gives 
to  the  President  of  the  Senate  the  right  to  receive  the 
electoral  votes  and  to  open  them,  and  that  then  they 
shall  be  counted  in  the  presence  of  the  Senate  and 
House.  Prior  legislation  had  formulated  the  manner 
in  which  this  proceeding  should  be  conducted.  The 


214  CONSTITUTIONAL    HISTOEY. 

House  was  Democratic,  the  Senate  was  Republi- 
can. The  House,  therefore,  would  inevitably  refuse 
to  count  the  Presidential  votes  in  the  manner  in 
which  the  Senate  would  count  them,  would  reject 
the  Republican  votes  of  Louisiana  and  Florida,  and 
the  one  vote  from  Oregon,  and  would  either  declare 
Mr.  Tilden  elected  President  of  the  United  States 
by  counting  the  rival  certificates  from  such  States, 
or  declare  that  no  election  had  taken  place  and 
proceed  to  elect  under  its  constitutional  right,  which 
would  have  resulted  in  Mr.  Tilden's  election.  At  this 
juncture  of  affairs  a  compromise  was  made  between 
the  parties  by  the  passage  of  what  is  known  as  the 
Electoral  Commission  act,  by  which  five  Senators, 
five  Representatives,  and  five  Justices  of  the  Su- 
preme Court  of  the  United  States  were  constituted  a 
court  to  whom  all  the  votes  upon  which  the  two 
houses  could  not  agree  were  to  be  referred,  the  de- 
cision of  which  was  to  be  final,  unless  overruled  by 
both  houses.  This  commission  stood  in  all  its  deter- 
minations eight  to  seven,  there  being  eight  Repub- 
licans and  seven  Democrats,  and  thus  counted  in 
Hayes  and  Wheeler  as  President  and  Vice-Presi- 
dent of  the  United  States  by  determining  all  the 
disputed  questions  in  favor  of  the  Republican  party. 
The  attitude  of  both  political  parties  during  this 
contest  must  have  appeared  to  the  cynical  observer 


THE  POST-CONSTITUTIONAL   HISTOEY.        215 

as  a  strange  exhibition  of  the  slight  hold  that  prin- 
ciples have  upon  political  parties  under  the  pressure 
of  personal  ambition  and  party  dictation.  The  Re- 
publican party  was  compelled,  from  the  necessity  of 
the  situation  during  the  war,  to  construe  the  Consti- 
tution in  the  most  liberal  spirit  and  in  the  loosest 
possible  way  to  meet  the  stretches  of  power  neces- 
sary to  bring  the  States  in  rebellion,  by  means 
of  an  armed  force,  back  to  the  Union ;  to  deny  the 
rights  of  States  against  the  rights  of  the  United 
States,  and  to  limit  the  State  power  to  the  narrow- 
est compass.  The  Democratic  party,  on  the  other 
hand,  was,  from  its  position  on  the  slavery  question 
before  the  war,  from  its  position  of  quiet  antagonism 
during  the  war,  its  position  in  opposition  to  the  re- 
construction legislation  of  the  United  States  Gov- 
ernment during  Republican  administration  subse- 
quent to  the  war,  driven  to  take  a  position  as  aJ- 
vocate  of  extreme  State  rights  doctrines.  In  the 
contest,  however,  before  the  Electoral  Commission 
the  parties  suddenly  changed  positions  on  what  was 
supposed  to  be  an  ingrained  difference  of  party 
policy  between  them.  The  Republicans  became 
the  most  strict  constructionists  of  the  Constitution 
as  to  Stat3  rights.  They  claimed  that  the  official 
return  of  a  sovereignty  of  the  magnitude  of  a  State, 
however  brought  about,  could  not  be  inquired  into 


216  CONSTITUTIOISTAL    HISTOKY. 

by  the  limited  and  circumscribed  sovereignty  of  the 
United  States  Government;  and  even  when  the 
State  of  Florida  solemnly  protested  that  its  return 
had  been  fraudulently  obtained,  the  members  of 
that  party  declined  to  review  the  decision  of  the 
State  when  it  once  had  been  solemnly  asserted. 
The  Democrats,  on  the  other  hand,  claimed  the 
right,  on  the  part  of  the  Government  of  the  United 
States,  upon  so  vital  a  question  as  the  election  of  a 
President  of  the  United  States,  to  inquire  how  the 
State's  return  was  made  up,  and  to  take  cognizance 
of  frauds  which  were  practiced  in  the  election,  which 
substantially  nullified  and  vitiated  the  State's  action, 
and  to  reform  such  if  it  be  in  conformity  with  justice. 

The  decision  of  the  Electoral  Commission  was 
generally  acquiesced  in  for  the  sake  of  peace.  The 
compromise  was  deemed  final,  and  President  Hayes 
and  Yice-President  Wheeler  were  duly  inaugurated 
President  and  Vice-President  of  the  United  States. 

The  Hayes  administration  fell  within  a  period  of 
political  tranquillity,  and  it  was  also  distinguished 
by  the  high  personal  character  of  the  Cabinet  ap- 
pointments. It  received  very  general  support,  and 
that  administration  very  largely  reaped  the  advan- 
tage arising  from  an  era  of  unexampled  and 
unparalleled  prosperity  on  which  the  United 
States  then  entered  by  reason  of  the  extraor- 


THE    POST-CONSTITUTIONAL   HISTORY.        217 

dinary  developments  of  the  Northwest  and  of  the 
mining  regions  of  Colorado,  Arizona,  Nevada,  Utah 
and  Wyoming.  During  this  administration  there 
was  an  immense  increase  of  exports,  in  part  caused 
by  the  failure  of  the  crops  in  Europe  and  by  the 
developments  which  had  been  made  in  the  railways 
of  the  country  in  increasing  the  facilities  and  cheap- 
ening the  cost  of  transportation.  Resumption  was 
accomplished,  and  although  Congress  framed  some 
injudicious  legislation  in  favor  of  the  remon- 
etization  of  silver  at  a  rate  below  its  market 
value,  as  a  sop  to  the  heresies  of  Greenbackers, 
yet  on  the  whole  the  administration  of  Mr.  Hayes 
and  the  congressional  legislation  of  that  period 
produced  an  advancement  of  the  public  credit,  a 
decrease  of  public  burdens,  and  set  a  term  to, 
and  ended  the  wasteful,  wicked,  and  corrupt  ad- 
ministration of  the  Southern  States  by  the  carpet- 
bag governments. 

The  election  of  1880,  wherein  the  standard-bearer 
of  the  Democratic  party  was  Gen.  Hancock,  and  of 
the  Republican  party  Gen.  Garfield,  resulted  in  the 
elevation  of  Gen.  Garfield  to  the  Presidential  chair, 
by  the  determining  vote  of  the  State  of  New  York. 
The  platform  of  the  Republican  party  in  1880  com- 
mitted that  party  to  the  protective  tariff  which  from 
1860  on,  was  the  continuous  fiscal  policy  of  the 
10 


218  CONSTITUTIONAL    HISTORY. 

United  States  Government.  The  Democratic  party, 
on  the  other  hand,  had  adopted  a  plank  in  favor  of  a" 
tariff  for  revenue  only.  The  chances  of  the  cam- 
paign were  decidedly  in  favor  of  the  Democratic 
party.  The  suspicion  that  a  wrong  had  been  done  in 
the  elevation  of  President  Hayes,  still  lingered  in 
the  minds  of  the  people  sufficiently  to  lead  many 
republicans  to  desire  a  rectification  of  that  wrong, 
by  the  election  of  a  Democratic  President  in 
1880.  Late  in  the  campaign,  the  Republicans 
issued  a  series  of  violently  aggressive  attacks  on 
the  free-trade  plank  of  the  Democratic  party,  by 
which  it  was  attempted  to  be  shown  that  the 
prosperity  of  the  United  States  was  largely  due 
to  the  protective  policy ;  that  the  manufacturing 
industries  would  be  utterly  crushed  in  the  event  of 
the  Democrats  prevailing,  and  that  the  laborer 
would  be  deprived  of  his  hire  and  his  family  of 
bread,  if  the  free-trade  policy  were  to  be  inaugu- 
rated as  against  the  protective  policy  which  it  was 
claimed  had  produced  within  the  twenty  years  then 
last  past  such  wonderful  results  in  developing  the 
prosperity  of  the  nation.  The  Democratic  party, 
instead  of  boldly  combatting  these  utterly  unfounded 
assertions,  had  become  demoralized  by  the  twenty 
years'  exclusion  from  power,  and  was  so  false  to 
principles,  and  so  anxious  to  succeed  that  the 


THE   POST-CONSTITUTIONAL   HISTORY.        219 

sacrifice  of  all  the  ballast  in  the  way  of  principle 
it  still  had  in  the  hold  of  its  ship,  was  determined 
upon  by  its  then  leaders.  This  caused  its  standard- 
bearer  to  issue  a  letter  at  a  moment  of  panic  saying 
that  he  was  personally  in  favor  of  protection,  what- 
ever the  platform  might  say,  and  caused  the  Demo- 
cratic speakers  to  hasten  to  explain  away  what  they 
supposed  to  be  a  damaging  element  of  their  platform, 
though  the  real  element  of  their  strength — the  rev- 
enue reform  plank — and  to  outbid  the  Kepublicans 
for  support  as  a  protectionist  party.  This  ruse  lost 
them  votes  from  Republican  free-traders,  who  were 
willing  to  vote  for  the  Democratic  ticket,  and  gained 
them  no  adherence  from  the  Republican  ranks.  A 
vulgar  forgery  of  a  letter  was  issued  by  the  party 
against  Garfield,  attempting  to  commit  him  to  a 
policy  favoring  Chinese  emigration.  To  add  to  the 
Democratic  calamity,  the  Democratic  party  had 
allowed  its  organization  in  the  city  of  New  York, 
where  its  strength  was  greatest,  to  fall  into  the 
hands  of  "  bosses  "  and  juntas  of  politicians  who 
were  at  all  times  willing  to  sacrifice  for  the  sure 
gains  of  the  local  offices  the  larger  and  more  prob- 
lematical results  of  a  national  victory,  and  as  the 
State  and  Municipal  elections  are  held  simultane- 
ously with  the  national  election  in  the  State  of  New 
York,  a  small  change  of  votes  caused  by  these 


220  CONSTITUTIONAL    HISTORY. 

sinister  and  personal  interests,  was  sufficient  to 
give  by  a  small  majority  the  thirty-five  electoral 
votes  of  the  State  of  New  York  to  the  Republic- 
ans instead  of  to  the  Democrats,  for  whom  in  the 
computations  theretofore  made  it  had  generally 
been  counted.  The  result  was  the  election  of  Mr. 
Garfield  as  President  of  the  United  States,  whose 
term  of  office,  beginning  on  the  4th  of  March,  1881, 
came  to  a  sudden  termination  at  the  hands  of  a 
malignant  assassin,  on  the  19th  day  of  September, 
1881.  Thereupon  Chester  A.  Arthur,  who  had 
been  elected  Yice-President  upon  the  same  ticket 
with  Mr.  Garfield,  became  the  President  of  the 
United  States. 

With  the  settlement  of  the  slavery  question,  re- 
construction, and  return  to  specie  payments,  the 
Republican  party  finished  its  work.  It  lives  now 
on  the  record  of  its  past  history.  The  Democratic 
party,  except  as  to  the  free-trade  principle,  to  which 
it  can  scarcely  be  said  to  be  faithful,  has  now  no 
distinctive  principle  from  the  Republican  party.  It 
still  insists  in  its  platforms  upon  State  rights,  but 
as  such  rights  are  not  really  assailed,  it  can  scarcely 
be  deemed  a  vital  question  in  American  politics. 
Indeed  the  caucus  system,  thirst  for  office  and 
popularity,  have  so  demoralized  both  great  politi- 
cal parties,  that  their  dissolution  is  a  mere  ques- 


THE   POST-CONSTITUTIONAL   HISTORY.        221 

tion  of  time.  Upon  causes  deeper  than  any  which 
the  present  leaders  of  these  parties  are  likely  to 
forecast  or  anticipate,  will  depend  the  reorganiza- 
tion of  American  political  parties,  upon  political 
issues  of  the  future  involving  principles  asserted 
on  the  one  side,  and  denied  by  the  other. 


CHAPTER  VI. 

CURRENT    QUESTIONS  PRODUCTIVE   OF   CHANGES  IN  THE 
CONSTITUTION. 

IT  is,  of  course,  impossible  to  foretell  with  accuracy 
the  changes  the  womb  of  time  may  bring  forth,  which 
will  modify  and  affect  the  organic  law  of  the  United 
States.  "Whatever  development  the  United  States, 
in  the  near  future,  will  experience  will  necessarily 
come  from  within  and  not  from  outward  pressure. 
Unlike  the  nations  of  Europe,  the  United  States 
has  no  neighbor  sufficiently  powerful  to  affect  its 
policy  or  to  modify  its  constitution.  It  requires 
no  standing  army ;  and  so  long  as  England  performs 
the  police  duties  of  the  seas,  it  requires  but  little 
of  a  navy.  It  has  no  occasion  to  fear  any  serious 
foreign  intervention,  and  it  is  therefore  left  freer 
than  any  other  nation  within  the  period  of  modern 
civilization  to  pursue  its  own  development.  In  that 
respect  its  position  is  sui  generis  ;  nothing  resemb- 
ling it  as  a  national  power  has  ever  appeared  on  the 
face  of  the  earth,  except  the  condition  of  savage 
222 


CURRENT   QUESTIONS.  223 

tribes  and  insular  nations,  not  brought  within  the 
influence  of  civilization,  as  to  the  severance  of  po- 
litical interests  from  that  of  all  other  peoples.  The 
good  that  is  within  it  can,  therefore,  come  to  its 
ripest  development:  the  evil  that  it  contains  will 
bring  its  direst  sinister  consequences.  The  influence 
of  foreign  nations  upon  it  are  entirely  of  an  indus- 
trial, intellectual,  and  commercial  character. 

A  combination  of  circumstances  beginning  with 
the  war  of  1861,  intensified  by  the  extension  of 
the  means  of  intercommunication  between  the 
States  by  the  railway  and  the  telegraph,  in  con- 
junction with  the  natural  and  artificial  waterways 
of  the  country,  have  made  of  the  United  States  a 
solidified  nation,  within  the  generation  last  past, 
to  an  extent  that  was  not  anticipated  by  its  found- 
ers, a  consolidation  much  more  complete  than 
the  theory  of  American  institutions  would  seem 
to  justify.  State  lines  exist  and  will  continue  to 
exist  for  all  purposes  of  penal  and  municipal 
law,  except  in  so  far  as  they  may,  as  already 
shown  in  these  pages,  be  overridden  by  the  para- 
mount law  of  the  Union.  Yet  the  traveler  who 
starts  in  a  railway  train  at  Boston  and  remains  in 
the  same  palace  car  until  he  arrives  at  San  Fran- 
cisco, travels  through  twelves  States  and  Territo- 
ries without  noticing  any  State  line,  and  rapidly 


224  CONSTITUTIONAL    HISTORY. 

comes  to  regard  the  whole  domain  as  his  one 
country.  The  tendency  of  the  times  is  necessarily 
to  weaken  the  power  of  the  State  011  the  alle- 
giance of  the  individual,  and  lead  to  a  greater  and 
greater  consolidation  and  unity  of  interest  of  the 
whole  United  States.  This  tendency  is  still  further 
accelerated  by  the  inability  on  the  part  of  the 
individual  States  to  deal  with  the  economic  and 
social  questions  which  necessarily  arise  from  the  ex- 
tension of  the  means  of  intercommunication  between 
the  States,  and  the  necessity  for  the  existence  of  a 
general  power  to  deal  with  them.  Already  the  States 
have  felt  and  have,  to  a  considerable  degree,  ac- 
knowledged their  inability  to  deal  with  the  rail- 
way and  the  telegraph  question.  The  decisions  of 
the  Supreme  Court  in  recent  years,  recognizing  the 
inability  on  the  part  of  the  States  to  deal  with  these 
questions,  have  considerably  extended  the  jurisdic- 
tion of  their  court  over  transportation  routes  lying 
partly  within  one  State  and  partly  within  another, 
or  upon  a  river  running  into  two  or  more  States.  In 
the  so-called  Granger  cases  the  Supreme  Court  has 
asserted  jurisdiction  in  cases  of  all  inter-State  com- 
merce in  which  goods  or  passengers  are  taken  from 
one  State  beyond  its  own  borders  within  the  domain 
of  another.  This  tendency  will  continue  to  consoli- 
date the  power  of  the  United  States  upon  all  indus- 


CURRENT   QUESTIONS.  225 

trial  and  commercial  matters  as  to  which  the  States 
have  a  common  interest,  and  for  the  purpose  of  put- 
ting that  question  at  rest  so  that  the  United  States 
may  deal  with  that  subject  precisely  as  it  deals  with 
the  subject  of  bankruptcy,  a  constitutional  amend- 
ment will,  in  all  probability,  be  proposed  and  acted 
upon,  granting  to  the  United  States  Government  in 
express  terms  that  which  it  already  claims  to  have 
by  implication,  so  that  it  may  deal  fearlessly  and 
effectively  with  the  important  problems  that  arise 
from  the  organization  of  great  monopoly  interests 
which  are  incident  to  modern  methods  of  the  trans- 
portation of  goods  and  passengers. 

With  the  exception  of  the  Pacific  railways,  all 
the  railway  corporations  of  the  United  States  were 
chartered  by  the  States,  and  though  many  of  them 
have  thousands  of  miles  of  line  traversing  many 
States,  they  claim  their  powers  under  the  separate 
charters  of  the  different  States  through  which  the 
lines  run,  and  are  in  theory  only  amenable  to  the 
States  covered  by  their  lines  of  rails.  Inequalities 
of  rates,  however,  creating  unjust  discriminations 
between  individuals  of  different  States,  and  exer- 
cising a  function  analogous  to  that  of  taxing  arbi- 
trarily and  without  control,  has  and  does  create  a 
power  within  the  nation  so  great  that  it  threatens 
sooner  or  later  to  dispute  the  fact  with  the 
10* 


22G  CONSTITUTIONAL   HISTORY. 

authorities  of  the  United  States  as  to  whether  the 
railway  or  the  governmental  power  is  the  greater. 
The  State  political  machinery  has  to  a  very  con- 
siderable degree  already  succumbed  to  the  exercise 
of  this  power,  and  therefore  to  make  head  against  it 
it  will  be  found  necessary  to  clothe  the  general 
Government  with  sufficient  attributes  of  sovereignty 
to  deal  with  the  subject  adequately. 

That  this  necessity  runs  counter  to  a  very  cor- 
rect theory  of  decentralization,  and  that  the  liberty 
of  the  individual  is  endangered  by  all  centraliza- 
tion of  power,  is  a  truth  to  which  thoughtful 
students  of  political  history  cannot  shut  their  eyes. 
But  precisely  as  in  Germany  a  false  decentraliza- 
tion of  power  had  to  be  succeeded  by  a  nation  hav- 
ing centralized  national  power,  with  the  view  to  in- 
telligent and  proper  decentralization  ;  so  in  time  it 
may  be  necessary  in  many  particulars  to  disregard 
State  lines  and  the  localizing  of  power  resulting 
from  such  State  lines,  for  the  purpose  of  more  in- 
telligent and  more  effectual  decentralization  in  those 
particulars  wherein  it  is  beneficial,  and  also  to  se- 
cure centralization  in  those  matters  wherein  decen- 
tralization involves  danger  to  the  commonwealth. 

The  development  of  the  taxing  power  arising 
from  the  war  quadrupling  the  number  of  office- 
holders in  the  United  States  within  the  period  from 


CURRENT   QUESTIONS.  227 

1860  to  1870,  and  increasing  as  it  did  the  ordinary 
expenditures  of  the  United  States  Government,  in- 
dependently of  interest  on  the  public  debt  from 
$60,000,000  in  1860  to  $220,000,000  in  1867,  has  in 
itself  aggravated  certain  evils  which  only  were  easy 
to  be  borne  at  a  period  of  time  when  the  United 
States  had  a  debt  of  $64,000,000,  representing  per 
capita  $1.91  in  1860,  instead  of  a  debt  of  $3,000,- 
000,000  in  1865,  with  a  per  capita  charge  of  $78.25. 
From  the  time  of  Jackson's  administration  ap- 
pointments went  by  favor,  not  by  merit,  and  that 
which  was  favor  originally,  degenerated  into  a  claim 
of  right  dependent  upon  political  activity  in  favor 
of  the  successful  candidate.  Appointments  were 
made  to  high  offices  not  because  A.  B.  was  specially 
qualified  for  the  office,  but  because  A.  B.  was  a 
skillful  or  efficient  worker  in  the  campaign  which 
preceded  the  successful  election  of  the  incumbent- 
This  system  not  only  fills  the  public  offices  of  the 
United  States  with  inefficient  and  corrupt  officials 
in  high  station,  and  keeps  out  of  political  life  the 
capable  men,  who  are  disinclined  to  perform  party 
work  as  a  condition  precedent  to  accession  to  office, 
but  it  also  created  the  same  system  under  those 
officials  as  to  all  their  subordinates ;  and  as  from  the 
Presidential  office  down  to  the  lowest  political 
official  tenure  of  office  depended  upon  the  con- 


228  CONSTITUTIONAL   HISTORY. 

tinuation  of  the  administration,  at  every  recur- 
ring election  these  officials  strove  by  personal 
activity  at  the  polls,  and  in  the  organization  of  the 
machinery  of  elections  and  nominations,  to  con- 
tinue in  power  the  political  party  to  which  they 
belong,  so  as  to  preserve  their  personal  incumbency 
of  the  office,  and  they  were  to  a  very  large  degree, 
and  still  are,  regularly  assessed  to  pay  the  political 
expenses  of  a  campaign.  Millions  of  dollars  are 
thus  raised  from  office-holders  in  the  United  States 
at  every  recurring  Presidential  election,  or  even 
local  elections,  in  the  interim,  which  may  have  a  re- 
mote effect  upon  the  Presidential  elections,  to  pay 
the  expenses  of  campaigns  and  to  create  a  "  corrup- 
tion fund  "  for  the  purposes  of  the  party  to  which 
these  office-holders  respectively  belong.  So  in- 
tolerable has  this  abuse  become  that  for  some 
years  tentative  efforts  have  been  made,  even  by 
administrations,  to  correct  some  of  the  more  fla- 
grant evils  of  this  system,  and  during  the  adminis- 
tration of  General  Grant  a  Civil  Service  Commis- 
sion was  organized  to  deal  with  the  subject.  The 
influence  of  party,  however,  "was  too  powerful  for 
any  permanent  success  during  General  Grant's 
presidency,  and  the  Civil  Service  Commission  came 
to  an  end. 

As  President  Hayes  was  elected  upon  a  platform 


CURRENT   QUESTIONS.  229 

which  pledged  his  administration,  in  the  event  of 
the  success  at  the  polls,  to  the  inauguration  of  a 
system  of  civil  service,  steps  were  inaugurated 
shortly  after  the  4th  of  March,  1877,  to  create  a 
system  of  promotions  by  merit  and  permanence  in 
the  tenure  of  office.  The  contest,  however,  of  the 
politicians  against  it,  and  the  somewhat  half- 
hearted manner  in  which  the  system  was  pressed 
by  the  administration  itself,  prevented  any  great 
progress  being  made  in  that  reform  during  the  ad- 
ministration of  President  Hayes. 

The  Republican  party  again  pledged  itself  to 
civil  service  reform  in  the  platform  of  the  conven- 
tion which  nominated  Mr.  Garfield,  and  although 
during  the  early  period  after  his  inauguration 
much  of  the  time  of  the  administration  was  taken 
up  by  personal  wrangles  between  senators  and  the 
President  on  the  question  of  the  exercise  of  the 
Presidential  prerogative  of  appointments  to  office 
without  dictation  from  senators,  which  operated  to 
prevent  any  considerable  progress  being  made  in 
the  introduction  of  a  harmonious  system  of  civil 
service,  yet  from  the  character  of  President  Gar- 
field  it  was  a  reasonable  assumption  that  during 
his  administration  some  decided  step  in  advance 
would  be  taken  looking  toward  the  practical  intro- 
duction of  this  reform. 


230  CONSTITUTIONAL    HISTORY. 

The  Democratic  party  discovered  that  during  the 
contest  for  the  Presidency  they  were  confronted 
by  a  vast  army  of  office-holders,  contributing, 
through  assessments  on  their  salaries,  to  the  extent 
of  millions  of  dollars  to  the  fund  of  their  adversaries 
to  prevent  the  accession  of  Democrats  to  power, 
such  assessments  were  paid  because  they  knew 
that  their  official  existence  would  be  terminated  in 
the  event  of  a  change  of  administration  under  the 
domination  of  an  adverse  party.  This  fact  brought 
about  a  conversion  of  the  Democrats  in  favor  of 
some  civil  service  reform  which  would  take  that 
important  element  of  opposition  out  of  future 
contests  to  prevent  their  accession  to  power,  so 
that  in  the  United  States  both  political  parties 
are  now  pledged  to  the  introduction  of  civil 
service  reform,  and  a  bill  introduced  by  Senator 
Pendleton,  a  life-long  Democrat,  which  secures 
fixity  of  tenure  in  all  the  lower  grade  of  offices,  is 
in  a  fair  way  to  become  a  law;  and  there  is  but 
little  doubt  that  within  a  few  years  the  public 
service  of  the  United  States  will  be  brought  more 
in  harmony  with  the  condition  of  public  service  in 
other  civilized  countries. 

The  evil  of  the  abominable  "spoils"  system  in 
the  United  States  is  not  so  much  the  incompetency 
of  the  officers — as  the  American's  adaptiveness  en- 


CUEEENT  QUESTIONS.  231 

ables  him  quickly  to  learn  the  routine  duties  of  an 
office — nor  in  the  waste  of  public  moneys  (because 
in  a  community  so  rich  in  productive  power  as  that 
of  the  United  States  the  amount  which  peculation 
can  take  from  it  is  a  burden  easy  to  be  borne) ; 
but  the  main  evil  is  that  the  "spoils"  system  de- 
moralizes both  parties,  and  makes  contests,  which 
should  be  for  principle,  mainly  for  plunder,  and 
induces  parties,  in  the  hope  of  an  accession  of 
strength  sufficient  to  obtain  political  power,  not 
only  to  lower  but  absolutely  to  abandon  their 
principles,  and  to  make  their  platform  conform 
to  what  they  suppose  will  more  rapidly  win  popu- 
lar success,  and  thus  makes  of  the  quadrennial 
presidential  contests,  mere  scrambles  for  office. 

Important  as  it  is  to  secure  a  reform  in  the  civil 
service  of  the  United  States,  that  alone,  however, 
even  if  successful,  would  not  result  in  any  improve- 
ment of  a  very  permanent  character  in  the  condi- 
tions of  the  party  systems  of  the  United  States. 
The  causes  which  make  parties  permanent  institu- 
tions in  the  machinery  of  government  of  constitu- 
tional monarchies,  having  like  England  large  bodies 
of  persons  who  are  either  placed  in  positions  of  ex- 
ceptional advantage,  like  that  of  the  hereditary 
legislators  of  England,  or  permanent  disadvantage 
like  the  classes  not  admitted  to  the  suffrage,  are 


232  CONSTITUTIONAL    HISTOKY. 

such  that  there  -will  necessarily,  so  long  as  this 
condition  of  affairs  exists,  be  a  party  seeking  to 
diminish  the  power  of  those  exceptionally  well 
placed  and  to  increase  the  political  powers  of 
those  who  are  not  admitted  to  the  suffrage.  This 
permanent  cause  for  party  existence  does  not  pre- 
vail in  the  United  States.  And  yet  party  lines  are 
drawn  as  sharply  in  the  United  States  as  they  are 
anywhere,  and  the  tyranny  of  party  is  in  many 
respects  greater  than  anywhere  else,  because  the 
caucus  system  has  permeated  it  to  the  uttermost 
degree  and  created  an  autocracy  of  party  managers, 
the  hold  of  which  will  not  be  entirely  shaken  off— 
indeed,  but  slightly  loosened — by  the  introduction 
of  the  civil  service  reform. 

That  party  management  in  the  United  States 
becomes  more  unscrupulous  than  it  does  elsewhere 
arises  from  the  fact  that  in  the  United  States  there 
is  no  large  leisure  class  of  cultured  men  who, 
from  a  sense  of  duty  or  because  of  their  large 
financial  or  property  stake  in  the  community,  de- 
vote themselves  to  its  political  government.  The 
absence  of  such  a  class  and  the  intensity  of  occu- 
pation in  industrial  employments  of  the  commu- 
nity at  large,  place  the  management  of  party  in 
the  hands  of  briefless  lawyers  and  unsuccessful 
people  in  other  avocations  of  life,  who,  having 


CUKKENT   QUESTIONS.  233 

been,  as  a  general  rule,  eliminated  downward  from 
other  occupations,  devote  themselves  wholly  to  poli- 
tical intrigue  and  the  perfecting  of  the  political  ma- 
chinery. As  office,  and  speculation  upon  the  money 
expenditures  arising  from  the  pursuit  of  office  by 
others,  through  party  machinery  are  their  main  ob- 
jects, it  results  iu  time  in  a  domination  of  a  class 
of  politicians,  to  whom  the  principles  of  the  party 
are  mere  cries  to  catch  votes,  and  who  doff  and 
don  those  principles  as  it  suits  their  convenience 
or  their  expectations  of  gain.  That  both  political 
parties  contain  among  their  leaders  men  of  a 
higher  order  of  intellect,  and  that  even  the  politi- 
cal machinery  cannot  get  on  without  men  of  that 
stamp,  to  whom  they  are  compelled  to  give  honors 
and  office,  is  unquestionably  true.  The  character- 
ization of  the  average  politician  applies  more 
especially  to  the  people  who  have  control  of  the 
machinery  of  politics  in  the  large  centres  of  popu- 
lation. This  evil  condition  is  promoted  and  is 
enabled  to  work  its  worst  results  by  the  system  of 
representation  now  prevalent,  with  few  exceptions, 
wherever  representative  institutions  prevail,  viz.  : 
that  of  giving  to  majorities  only  in  circumscribed 
election  districts  the  right  to  representation,  instead 
of,  as  far  as  possible,  by  some  system  of  minority 
or  totality  representation,  to  aim  at  a  representa- 


234  CONSTITUTIONAL   HISTOEY. 

tion  of  the  whole  community.  The  hold  that  the 
party  managers  have  upon  the  voters,  who  would 
otherwise  rebel  against  their  tyranny,  is  that  if  the 
voter  fails  to  vote  for  the  candidate  they  submit, 
he  either  is  compelled  to  throw  away  his  vote  on 
one  who  has  no  chance  of  success,  or  directly  or 
indirectly  to  aid  the  promotion  to  office  of  some 
one  nominated  by  a  party  machinery  equally 
odious  and  representing  the  other  side  in  politics. 
If,  on  the  other  hand,  in  the  election  of  represent- 
atives, small  bodies  of  voters  could  detach  them- 
selves from  the  main  body,  and  by  affiliation  with 
other  similarly  detached  bodies  of  voters  within  the 
State,  succeed  in  representing  one  or  more  electoral 
quotas,  as,  for  instance,  in  the  State  of  New  York, 
with  its  twelve  hundred  thousand  voters,  having 
thirty-three  Members  of  Congress  to  elect,  could 
thus  secure  one-thirty-third  of  the  voting  power  of 
the  State,  these  combined  detachments  could  elect 
a  representative  independent  of  party,  and  in  this 
way  very  important  phase  of  popular  opinion  could 
seek  and  find  its  own  representation.  Parties  then 
would  represent  principles,  and  the  principles  not 
be  the  mere  banner  or  shibboleth  of  party,  hauled 
down  and  replaced  as  it  suits  its  convenience, 
and  the  individual  voter  would  become  compara- 
tively independent  of  party  dictation.  This  would 


CURRENT   QUESTIONS.  235 

act  as  a  solvent  of  political  parties  as  at  present 
constituted ;  would  retain  what  in  them  is  useful 
and  good,  and  would  utterly  prevent  the  evil 
effects  of  the  caucus  system.  This  reform  once  in- 
troduced, would  fructify  into  inestimable  political 
blessings  to  the  country,  as  it  would  make  a  politi- 
cal career  independent  of  an  accidental  majority  in 
&  district,  and  secure  for  that  career  an  entirely 
different  class  of  statesmen  and  politicians  than 
party  machinery  now  brings  to  the  front.  The 
civil  service  reform  confessedly  will  act  only  upon 
the  minor  offices  within  the  United  States.  This 
reform  of  minority  representation  would  be  opera- 
tive for  good  in  a  change  in  the  character  of  the 
nominees  for  every  important  elective  office  where 
there  are  more  than  two  persons  to  be  elected, 
and  would  totally  alter  the  character  of  political 
parties  as  at  present  mischievously  constituted. 

Another  subject  which  will  presently  engage  the 
attention  of  the  American  people  is  one  which, 
since  1860,  has  been  driven  to  the  background, 
that  of  liberalizing  its  navigation  laws  and  its  sys- 
tem of  tariff  duties.  The  rate  of  taxation  in  the 
United  States  both  as  to  internal  revenue  and  the 
admission  of  foreign  goods  is  as  yet,  it  may  be  said, 
upon  a  war  footing.  When  the  Southern  delegates 
to  Congress  withdrew  in  1861,  the  opportunity  was 


236  CONSTITUTIONAL    HISTORY. 

immediately  seized  upon  by  the  protectionists  to  in- 
augurate a  protective  system  on  the  pretence  that 
the  Government  required  an  enormous  amount  of 
revenue  to  carry  on  the  war,  and  that  to  increase  the 
tariff  would  increase  the  revenue,  as  well  as  in- 
directly afford  protection  to  a  larger  number  of 
home  industries.  The  long-continued  adhesion  of 
the  Southern  States  to  a  system  of  free  trade  put 
for  the  time  being  every  advocate  of  free  trade  in 
the  North  during  the  progress  of  the  war  in  a  false 
position,  because  it  appeared  as  though  he  were  in 
favor  of  the  South  in  advocating  free-trade  theories. 
The  fictitious,  prosperity  created  by  the  paper 
currency  issued  during  the  war,  disguised  for  the 
time  being  the  evil  influence  of  a  protective  tariff. 
After  the  close  of  the  war  the  paramount  questions 
which  engrossed  the  attention  of  the  nation  were 
necessarily  those  relating  to  the  re  construction  of  the 
Government  of  the  Southern  States,  and  the  return 
to  specie  payments ;  subsequently  the  depression 
caused  by  a  return  to  specie  payments  enabled  the 
advocates  of  a  high  tariff  to  attribute  the  evils  which 
came  synchronously  with  contraction,  to  contrac- 
tion alone.  After  specie  payment  was  resumed 
an  immediate  impetus  was  given  to  the  prosperity 
of  the  country  by  a  combination  of  causes  of  which 
the  return  to  a  sound  financial  basis  was  but  a  part, 


CURKENT   QUESTIONS.  237 

successive  good  crops,  the  great  tide  of  emigration, 
and  the  development  of  the  mining  industries  of  the 
Western  territory  as  well  as  the  opening  up  of  vast 
tracts  of  virgin  agricultural  lands  in  the  Northwest, 
together  contributed  since  1876  to  enhance  the  pros- 
perity of  the  United  States  beyond  all  precedent. 
This  again  concealed  from  the  people  the  evil  effects 
of  the  tariff  legislation,  and  enabled  the  tariff  advo- 
cates to  claim  for  their  vicious  system  the  prosper- 
ity which  came  despite  their  system. 

In  one  respect  alone  is  the  evil  effect  of  restric- 
tion so  visible  that  it  cannot  be  attributed  to  any 
other  cause,  unaccompanied  as  it  is  by  any  mis- 
leading element  of  prosperity  on  the  other  hand, 
which  counteracts  it ;  and  that  is,  in  the  complete 
prostration  of  the  shipping  interests  of  the  United 
States,  and  the  almost  total  extinction  of  its  com- 
mercial steam  marine  engaged  in  foreign  trade. 

The  beginning  of  a  change  in  the  restrictive 
legislation  of  the  United  States  will  probably  first 
be  made  herein.  The  navigation  laws  will  be  made 
more  liberal ;  an  American  register  will  be  able  to 
be  obtained  on  ships  built  in  foreign  jurisdictions, 
as  an  effort  must  soon  be  made  to  bring  back  to 
the  United  States  part  of  the  carrying  trade  which 
its  navigation  laws  have  utterly  destroyed.  An 
overflowing  treasury  will  be  another  reason  for 


238  CONSTITUTIONAL    HISTOEY. 

revising  the  tariff.  The  plea  of  necessity  for  higher 
ratas  of  duty,  false  as  it  is  because  the  experience 
of  England  and  France  under  the  Cobden-Cheval- 
ier  treaty  showed  conclusively  that  the  lowering  of 
rates  of  duty  increased  the  revenue,  has  also  fallen 
away.  A  dangerous  move,  however,  in  opposition 
to  free  trade  is  already  making  itself  apparent  in 
an  agitation  for  the  removal  of  the  internal  revenues 
of  the  country,  which  yield  a  very  considerable 
proportion  of  the  annual  income,  in  the  expectation 
that  the  removal  of  these  internal  revenue  duties 
will  compel  the  maintenance  of  a  high  tariff.  One 
of  the  first  steps  in  that  direction  had  already  been 
made  under  the  plea  of  a  free  breakfast  table,  by 
which  the  duty  on  tea  and  coffee  was  lowered,  and 
by  putting  on  the  free  list  a  large  number  of  ar- 
ticles which  the  United  States  do  not  at  all  produce. 
Could  the  Democratic  party,  which  is  the  tradi- 
tional party  of  free  trade,  be  relied  upon  to  be  true 
to  its  principles  upon  that  subject,  it  would  be 
reasonable  to  believe  that  the  very  next  Congress 
would  succeed  in  producing  considerable  reform  in 
that  particular ;  but  the  result  of  the  recent  Presi- 
dential election  in  which  the  Democratic  party  as 
the  campaign  was  drawing  to  a  close,  became  panic 
stricken  by  reason  of  the  attack  upon  its  revenue 
reform  plank  in  its  platform,  has  so  demoralized 


CURKENT   QUESTIONS.  239 

many  of  the  so-called  leaders  of  the  party,  that 
already  indications  are  abundant  that  some  of  the 
"Western  leaders  of  that  party  will  in  the  future 
Congress  be  out-and-out  protectionists,  and  at- 
tempt to  outbid  the  Republican  party  in  the  claim 
for  popular  confidence  on  the  ground  of  willingness 
to  afford  protection  to  home  industry  as  against 
foreign  competition.  A  reorganization  of  parties 
will  in  all  probability  result  from  that  question, 
after  both  great  party  organizations  will  have  been 
shattered  by  it;  and  that  reorganization  would 
best  be  brought  about  by  a  previous  introduction 
of  the  system  of  minority  representation,  which 
would  assist  in  the  detachment  of  great  bodies  of 
voters  from  party  affiliations. 

One  of  the  problems  which,  though  locally  con- 
fined to  the  Pacific  coast,  is  one  with  which  the 
Union  as  a  whole  is  called  upon  to  deal,  is  what  is 
known  as  the  Chinese  question.  Vast  bodies  of 
Celestials  have  been  attracted  to  California  and 
the  Pacific  States  generally,  and  have  there  proved 
themselves  to  be  very  formidable  competitors  to 
American  labor,  as  the  wants  of  the  Chinaman  are 
simpler  than  those  of  the  European  and  American, 
and  his  industry  is  more  continuous  and  machine- 
like  than  that  of  his  rivals.  This  has  created  a 
prejudice  against  his  labor  to  that  degree,  that  the 


240  CONSTITUTIONAL    HISTORY. 

Constitution  of  the  State  of  California  has  been 
amended  to  prevent  corporations  from  employing 
Chinese  labor,  and  the  politics  of  the  Pacific 
States  is  largely  influenced  by  that  question. 

As  a  mere  branch  of  the  protective  system,  the 
political  economist  must  of  course  deny  to  the  agi- 
tation against  the  Chinaman  all  validity ;  but  there 
is  one  argument  which  is  advanced  in  favor  of  the 
exclusion  of  the  Chinaman  which  has  force,  and 
to  which  the  free-trade  argument  is  no  answer. 
The  Chinaman  refuses  to  become  part  of  the  body 
politic ;  no  matter  how  long  his  residence,  he  does 
not  become  a  citizen  :  he  expects  to  be  interred  in 
his  country ;  he  lives  in  separate  quarters  ;  and  a 
considerable  addition  to  that  population  creates  a 
class  of  people  who  are  not  citizens,  and  who  have 
no  permanent  interest  in  the  welfare  of  the  com- 
munity in  which  they  reside.  That  such  a  class, 
if  sufficiently  numerous,  may  become  a  dangerous 
one  to  the  civilization  of  a  community,  is  unques- 
tionably true.  That  to  a  large  degree,  however, 
his  seggregation  from  the  rest  of  the  community  is 
due  to  prejudice  against  him,  and  that  in  time  he 
may  become  by  intermarriage,  when  that  prejudice 
subsides,  a  citizen  of  the  United  States,  is  likewise 
true  ;  but  this  process  is  necessarily  so  slow  that 
the  unchecked  emigration  from  that  vast  and  teem- 


CURRENT    QUESTIONS.  241 

ing  hive  of  humanity,  the  Celestial  empire,  will  pro- 
duce a  considerable  disturbance  in  the  social  well  be- 
ing, and  endanger  the  political  condition  of  some  of 
our  far  Western  States,  is  possible.  This  question 
has  already  received  partial  attention  by  legislation 
by  the  Congress  of  the  United  States  which  must  rely 
for  justification  upon  a  basis  quite  other  than  the 
false  and  delusive  one  of  protection  to  American 
labor  which  such  legislation  is  supposed  to  afford. 
A  rapid  decrease  of  the  public  debt  takes  the 
question  of  the  payment  of  the  bondholder  in  any 
but  the  best  of  faith  out  of  the  domain  of  political 
questions.  But  there  still  remains  a  monetary 
question  which  has  been  unfortunately  muddled  in 
the  United  States  by  demagoguery.  The  ratio  of 
silver  to  gold  having  been  fixed  too  low  by  the 
currency  laws  anterior  to  the  war,  silver  was  prac- 
tically driven  out  of  circulation,  gold  upon  that 
ratio  being  the  cheaper  metal.  In  1873  Congress 
demonetized  silver  for  all  large  payments.  Subse- 
quently the  rapid  decline  of  silver  in  the  markets 
of  the  world,  due,  in  great  part,  to  the  demonetiza- 
tion of  silver  by  Germany  and  the  discovery  of 
enormous  silver-bearing  lodes  in  the  Rocky  Moun- 
tains, caused  a  fear  amongst  silver  producers  that 
unless  America  remonetized  silver,  silver  would  fall 
to  such  an  extent  as  to  seriously  impair  the  value 
11 


242  CONSTITUTIONAL    IIISTOEY. 

of  silver  mines.  The  original  dollar  was  416 
grains  standard.  Its  weight  was  changed  in  1837 
to  412^,  and  its  fineness  changed  to  900  from  892. 
This  coinage  of  412  j  grains  was  revived  in  1S78  in 
what  was  known  as  the  Bland  Silver  Bill,  and  it 
was  made  a  legal  tender  for  all  debts,  public  and 
private,  notwithstanding  the  fact  that  in  recent 
years  the  value  of  silver  had  sunk  so  low  that  the 
value  of  the  coin  in  the  dollar  of  412  \  grains  was 
less  than  eighty-eight  cents.  The  amount  re- 
quired to  be  coined  under  the  bill  is  $2,000,000  per 
month.  Thus  far  no  inconvenience  has  resulted 
from  this  coinage,  because  a  considerable  part  of  it 
has  been  absorbed  by  the  necessities  for  small 
change.  A  trade  dollar  also  was  issued  for  pur- 
poses of  Eastern  trade  of  420  grains,  but  this  is 
not  a  legal  tender  dollar.  A  large  accumulation 
of  the  standard  silver  dollars  is  now  in  the  vaults  of 
the  treasury,  and  if  no  amendment  is  made  to  the  law 
as  to  the  rate  of  coinage,  the  question  will  soon  be 
upon  the  United  States  whether  they  desire  to 
have  an  exclusive  silver  coinage  of  a  depreciated 
character,  as  under  the  inevitable  effects  of  the 
Gresham  law  the  cheaper  currency  will  drive  out 
the  dearer.  That  this  effect  would  be  counter- 
acted by  a  simultaneous  remonetization  of  silver 
by  the  European  governments  which  have  hereto- 


CURRENT   QUESTIONS.  243 

fore  demonetized  it,  thus  creating,  for  the  time 
being,  a  strong  demand  for  silver,  is  doubtless  true  ; 
but  as  the  result  of  recent  conferences  on  that 
subject  gives  us  no  hope  in  that  direction,  the  Uni- 
ted States  Government  will  either  have  to  demone- 
tize silver  or  raise  the  number  of  grains  in  the 
silver  dollar  to  a  par  with  gold  values,  or  in  the 
future  demonetize  gold,  and  have  its  currency  in  a 
depreciated  condition  as  compared  with  the  actual 
values  of  the  metal.  The  question  in  the  United 
States  is  more  complicated  and  taken  out  of  the 
domain  of  pure  theoretical  and  philosophical  dis- 
cussion on  its  merits,  as  to  whether  a  bi-metallic  or 
a  mono-metallic  currency  is  better  for  a  community, 
by  the  fact  that  the  persons  who  were  afflicted  with 
the  greenback  mania  have  become  imbued  with 
the  idea  that,  as  greenbacks  have  now  become 
equivalent  to  gold,  their  hope  of  prosperity  lies  in 
a  depreciated  silver  currency.  It  is  a  curious 
illustration  of  how  fast  a  hold  the  post  hoc  ergo 
propter  hoc  error  takes  upon  a  community.  As  the  in- 
habitants of  the  Northwestern  States  during  a  period 
of  rapid  issues  of  irredeemable  paper  money  were  en- 
abled to  pay  off  their  debts,  and  were  prosperous  in 
so  doing,  in  a  currency  which  incidently  depreciated 
rapidly,  many  of  them  concluded  that  the  deprecia- 
tion was  the  source  of  their  prosperity,  and  that 


244  CONSTITUTIONAL    HISTORY. 

therefore  any  currency  that  depreciates  is  useful 
to  them. 

In  the  early  period  of  the  war — when  the  Confed- 
erate forces  prevailed  over  the  Union  armies — 
the  organization  of  the  national  banks  was  devised 
as  a  means  compulsorily  to  float  the  public  debt 
and  to  create  a  large  home  market  for  United 
States  bonds.  The  State  bank  systems,  which 
theretofore  existed  for  furnishing  a  currency  for  the 
people  of  the  United  States,  were,  for  good  or  ill, 
dependent  entirely  upon  the  legislation  and  the  en- 
forcement of  the  laws  in  the  various  States  of  the 
Union.  The  facilities  for  counterfeiting  these  is- 
sues, as  they  were  by  no  means  uniform  in  device, 
were  abundant,  and  the  danger  of  being  imposed  upon 
by  counterfeit  and  badly  secured  bills  was  very  great. 
These  causes  produced  a  constant  fluctuation  in  the 
value  of  such  currency,  and  at  any  moment  of  finan- 
cial depression  or  crisis  the  currencies  of  the  differ- 
ent States  became  of  different  values,and  great  losses 
were  entailed  upon  the  holders  by  reason  of  such 
fluctuations.  The  Government  issues  of  paper 
money,  together  with  the  issues  of  the  national 
banks,  based  upon  deposit  of  United  States  bonds, 
gave  a  uniform  character  and  value  to  the  currency 
of  the  United  States.  This  convenience  is  so 
great  that  the  national  banking  system,  although 


CUEBENT   QUESTIONS.  245 

opposed  with  considerable  vigor  at  first,  has  been 
accepted  in  the  United  States  as  a  remedy  for  an 
evil  much  greater  than  that  which  it  in  its  turn  has 
brought  about.  There  is,  therefore,  no  probability 
of  any  concerted  action  against  the  national  banks, 
and  the  system,  with  some  slight  modifications,  is 
likely  to  be  as  permanent  as  the  national  debt. 
This  system  has  also  set  at  rest  the  question  of  the 
recharter  of  a  United  States  bank.  There  is  occa- 
sional and  fitful  opposition  to  the  issues  of  the 
national  banks,  on  the  ground  that  the  Government, 
by  a  direct  issue  of  the  notes  represented  by  the 
national  bank  currency,  would  save  the  interest 
represented  by  such  issue.  The  objection,  however, 
on  the  other  hand,  to  give  the  Government  absolute 
control  of  the  issue  of  the  currency,  and  the  sinister 
influence  that  it  may  thereby  exercise  upon  the 
money  market,  is  of  so  much  more  serious  moment 
than  the  one  of  mere  loss  of  interest,  that  thoughtful 
people  have,  on  the  whole,  acquiesced  in  and  deemed 
it  preferable  to  maintain  the  system  of  national  banks, 
rather  than  to  place  the  monopoly  of  .currency  issue 
entirely  in  the  hands  of  the  Government ;  and  as 
hitherto  no  loss  has  been  entailed  upon  the  holders 
of  national  bank  notes,  as  actual  issues  of  notes  are 
always  secured,  whatever  fate  may  betide  the  bank 
in  its  discount  and  deposit  department,  the  well- 


246  CONSTITUTIONAL    HISTORY. 

grounded  objection  that  existed  against  the  State 
issues,  which  caused  monstrous  losses  to  holders 
bj  failures  of  banks  to  redeem,  does  not  prevail 
against  the  United  States  banks.  However,  if  the 
present  rate  of  extinction  of  the  national  debt  con- 
tinues, in  less  than  ten  years  some  other  basis  than 
United  States  bonds  must  be  provided  for  a  uni- 
form currency. 

During  the  war  large  portions  of  the  public 
domain  were  granted  to  private  corporations  to 
assist  them  in  b'uilding  the  Pacific  railroads.  This 
was  followed  by  great  grants  to  railway  corpora- 
tions to  assist  in  building  railways  but  remotely 
connected  with  the  Pacific  system.  However  justi- 
fiable the  motive  originally  was  to  grant  the  aid  of 
public  lands  as  an  encouragement  to  the  -building 
of  these  great  arteries  of  commerce,  yet  the  aggre- 
gate public  property  thus  given  away  became  so 
great  and  the  monopoly  in  public  lands  threatened 
to  become  so  formidable,  that  a  public  opinion 
has  been  evoked  in  the  United  States  that  the 
public  domain  left  under  the  control  of  the  Govern- 
ment shall  be  used  entirely  for  the  purposes  of  the 
settlers,  and  not  be  thus  given  away.  It  is  estimated 
that  the  domain  given  to  the  North  Pacific  Pv,ailway 
and  branches  is  equal  in  territory  to  that  of  the 
whole  of  France.  The  increased  value  of  the  pub- 


CURRENT  QUESTIONS.  247 

lie  domain  of  the  United  States  will  in  itself  be  a 
check  against  extravagant  concessions  of  land  in 
that  manner,  and  an  intelligent  public  opinion  has 
been  created  to  prevent  wastefulness  hereafter. 

The  advancing  wealth  of  the  nation  resulting  in 
a  growing  importance  of  governmental  functions  in 
different  departments  of  the  United  States  Gov- 
ernment, which  are  respectively  under  the  direc- 
tion of  one  of  the  Cabinet  officers,  and  the 
desirability  that  these  departments  should  be  sub- 
jected to  the  constant  criticism  of  the  Legislative 
branch  of  the  Government,  has  caused  an  earnest 
agitation  in  favor  of  giving  to  Cabinet  officers 
seats  in  the  House  of  Representatives,  with  a 
power  to  debate  without  voting  on  the  result ;  so  that 
in  the  United  States,  as  in  England,  interpellations 
may  be  made  respecting  the  conduct  of  any  one  of 
the  important  departments  of  Government,  and  an 
answer  elicited  on  the  spot.  At  the  beginning  of 
the  American  Government  these  Cabinet  officers 
were  personal  advisers  of  the  President,  were  ap- 
pointed by  him,  and  were  responsible  to  him 
alone.  The  fact  is  now,  however,  recognized  (more 
especially  with  reference  to  the  Treasury)  that 
the  annual  reports  or  budgets  give  insufficient  in- 
formation, and  that  during  the  course  of  the  year 
too  much  opportunity  is  afforded  for  sinister  influ- 


248  CONSTITUTIONAL    HISTOEY. 

ences  to  accomplish  ends  having  relation  to  stock- 
jobbing and  the  obtaining  of  private  information 
of  intentions  on  the  part  of  the  Treasury  as  to  pol- 
icy, sale  of  bonds,  etc.,  a  remedy  for  which  would 
be  found  if  the  Secretary  of  the  Treasury  were 
personally  responsible  to  Congress.  The  further 
advantage  expected  to  be  derived  from  having  the 
Cabinet  or  Ministry  connected  with  the  popular 
branch  of  the  legislative  body  is  that  in  that  way 
some  more  direct  responsibility  will  attach  for  the 
legislation  of  the  Congressional  session  to  the 
Government  in  power.  One  of  the  serious  defects 
of  all  American  legislation  is  the  almost  entire  ab- 
sence of  responsibility  connected  with  legislation. 
The  party  having  a  majority  has  no  organized 
Ministry  charged  with  the  duty  of  forwarding  and 
formulating  the  public  legislation  of  the  session, 
and  however  faulty  and  slipshod,  and  even  mis- 
chievous, the  Congressional  or  State  legislative 
law-making  may  prove  during  the  course  of  the 
year,  the  party  having  a  numerical  majority  in  the 
.legislative  body  is  not  responsible  because  there 
is  no  Ministry  as  part  of  the  law-making  power 
which  proposes  and  promotes  legislation.  Laws 
are  proposed  by  individual  members  upon  their 
own  responsibility,  and  are  passed  in  a  hap-hazard 
and  slipshod  sort  of  way.  A  further  argument 


CURRENT   QUESTIONS.  249 

in  favor  of  this  reform  is  that  the  necessity  to 
explain  the  conduct  of  a  department  whenever  an 
adverse  investigator  chooses  to  push  an  inquiry 
does  certainly  apply  the  corrective  of  publicity  to 
all  jobbery  and  peculation. 

On  the  other  hand,  the  objection  that  is  raised 
to  a  constitutional  amendment  which  is  necessary 
to  produce  this  result  is,  that  these  departments 
being  Executive  departments,  the  men  selected  for 
them  are  persons  who  are  supposed  to  possess  ex- 
ecutive ability,  which  may  or  may  not  be  accom- 
panied by  oratorical  powers  such  as  are  necessary 
for  the  purpose  of  holding  their  own  in  a  popular 
arena  of  debate,  and  that  in  consequence  of  such 
a  change,  incumbents  of  Cabinet  offices  could  no 
longer  be  selected  from  among  the  men  who  work 
instead  of  the  men  who  talk  about  it,  but  must  be 
selected  from  the  latter  class  alone.  This  objec- 
tion, though  it  has  some  validity,  is  not  so  serious 
as  at  first  blush  would  appear,  because  a  very 
short  experience  teaches  the  average  American  to 
talk  clearly  and  glibly  on  the  subject  that  he  has 
in  hand. 


11* 


CHAPTEE  TO. 

THE     STATE     CONSTITUTIONS;     THE   CHANGES  THEEEIN, 
AND   THEIB  DEVELOPMENT. 

THE  Federal  power  being  one  of  delegated 
powers,  the  States  are  in  all  matters  not  so  dele- 
gated, the  sole  sovereignties.  The  State  Constitu- 
tions map  out  the  organization  of  the  Government, 
limit  its  powers,  and  are  in  many  respects  more 
important  conservators  of  the  liberty  of  the  citizen 
than  the  Federal  Constitution  itself  ;  for  the  reason 
that  the  powers  not  surrendered  to  the  Govern- 
ment of  the  United  States  are  much  more  extensive 
and  much  more  immediately  related  to  the  rights 
of  the  individual,  and  therefore  affect  him  more 
closely  than  the  delegated  powers  of  the  Federal 
Government.  In  all  his  functions  as  citizen — in 
his  amenability  to  the  deprivation  of  life  or  liberty 
by  the  criminal  law,  in  the  assertion  or  denial  of 
his  rights  through  the  civil  administration  of 
justice — the  State,  with  but  few  exceptions,  has 
absolute  control  over  the  life,  liberty,  and  happi- 
ness of  its  citizens.  This  book,  therefore,  would 

250 


THE   STATE   CONSTITUTIONS.  251 

be  incomplete  if  it  did  not  give  some  account  of  the 
changes  which  have  taken  place  in  recent  years  in 
most  of  the  State  Constitutions,  showing  by  means 
of  these  organic  laws  the  course  of  governmental 
development. 

During  the  Revolutionary  War  most  of  the  origi- 
nal thirteen  States  adopted  State  Constitutions ; 
many  of  which  were  redrafted  shortly  after  the 
war,  and  before  the  formation  of  the  Constitution 
of  the  United  states,  all  the  original  States  had 
written  Constitutions.  Every  State,  on  its  admis- 
sion to  the  Union,  submits  its  Constitution  to  Con- 
gress, so  as  to  give  assurance  thereby  that  it  has, 
as  required  by  the  United  States  Constitution, 
adopted  a  republican  form  of  government.  These 
Constitutions  all  contain  elaborate  declarations  of 
the  rights  of  citizens  which  are  not  to  be  subjected 
to  legislative  or  judicial  interference,  and  which  are 
reserved  from  the  domain  of  Government.  These 
declarations  of  rights  also  contain  carefully  worded 
provisions  securing  the  right  to  the  writ  of  habeas 
corpus,  of  jury  trial,  of  exemption  of  private  prop- 
erty from  seizure  for  public  purposes  except  on 
due  compensation  being  made  ;  they  set  forth  how 
such  compensation  shall  be  ascertained  ;  they  insist 
upon  guarantees  of  freedom  of  speech  and  of  the 
press  ;  secure  the  right  of  petition  and  the  right 


252  CONSTITUTIONAL   IIISTOKY. 

of  citizens  to  vote  at  all  elections,  and  require 
that  all  officers  shall  either  be  directly  elected  by 
the  people  or  appointed  by  some  authority  elected 
by  the  people. 

Since  the  War  of  the  Rebellion  the  Southern 
States,  in  which  slavery  had  theretofore  existed, 
amended  their  Constitutions,  by  forever  abolish- 
ing slavery  and  every  form  of  human  servi- 
tude. 

State  Constitutions  all  divide  the  functions  of 
government  into  Legislative,  Judicial  and  Executive, 
specify  the  manner  in  which  the  Legislature  shall 
be  elected,  and  set  forth  the  powers  of  the  Execu- 
tive ;  organize  the  Judicial  system ;  the  manner  of 
the  appointment  of  the  Judges,  and  confer  upon  them 
their  respective  jurisdictions.  There  is  much  uni- 
formity in  that  particular  in  the  State  Constitutions. 
The  legislative  power  is  generally  vested  in  a  legis- 
lative body  composed  of  a  Senate  and  an  Assembly. 
The  Senate  is  a  small  elective  body  of  one  member 
each  from  large  senatorial  districts,  elected  for  a 
longer  period  of  years  than  the  more  numerous 
and  popular  legislative  body  which  is  elected  in 
smaller  districts  and  for  shorter  terms. 

Each  State  has  its  Governor,  elected  from  one  to 
four  years  ;  some  have  Lieutenant-Governors,  and 
other  elective  executive  officers.  In  such  States 


THE   STATE   CONSTITUTIONS.  253 

where  public  works  exist,  canal  commissioners  or 
superintendents  of  public  works  are  either  elected 
or  appointed  under  constitutional  provisions; 
state  engineers  and  surveyors  exist ;  state  prison 
inspectors  and  other  public  boards  to  take  charge 
of  public  works ;  municipal  organizations  are 
created ;  county  organizations  are  established,  and 
a  system  of  decentralization  of  power  is,  as  a  gen- 
eral rule,  adopted  for  the  purpose  of  securing  local 
self-government  within  the  domain  of  the  State. 
Provisions  are  contained  in  these  Constitutions  upon 
the  subject  of  taxation  to  secure  uniformity  and 
equality  therein ;  to  prevent  the  growth  of  public 
debts  by  throwing  safeguards  around  the  creation 
thereof. 

There  are  provisions  in  relation  to  the  militia 
Most  of  the  Constitutions  now  contain  special  arti- 
cles on  the  subject  of  bribery  and  official  corrup- 
tion, and  all  contain  provisions  as  to  methods  of 
amendment.  In  some  of  the  States  the  Constitu- 
tion is  limited  as  to  duration  to  a  number  of  years 
only,  and  State  conventions  are  required  to  be  called 
from  time  to  time  for  the  purpose  of  suggesting 
amendments. 

Some  of  the  original  Constitutions  of  the  States 
required  voting  to  be  viva  voce,  and  it  was  only  in 
imitation  of  the  Constitution  of  the  State  of  New 


254  CONSTITUTIONAL   HISTORY. 

York  of  1777,  that  voting  by  ballot  became  gener- 
ally introduced. 

In  some  of  the  earlier  Constitutions  of  the  States 
a  property  qualification  was  still  required  for  the 
enjoyment  of  full  citizenship,  but  this  qualification 
has  almost  wholly  been  swept  away.  In  the  Con- 
stitution of  the  State  of  Massachusetts  there  is  a 
provision  that  the  voter  shall  be  able  to  read  the 
Constitution  in  the  English  language,  and  write  his 
name,  and  by  an  amendment  to  its  Constitution 
in  1863,  two  years  in  addition  to  the  time  necessary 
to  qualify  a  resident  to  become  a  citizen  of  the 
United  States,  is  necessary  before  he  can  be  a 
citizen  of  Massachusetts. 

Under  the  Constitutions  anterior  to  1848  many 
of  the  officers  now  elected  were  appointed  by  the 
Governors.  Notably  so  was  this  the  case  as  to  judi- 
cial positions.  The  Constitution  of  1846  of  the 
State  of  New  York,  which,  as  to  this  change  was 
the  pioneer  State  of  the  Union,  was  drafted  by 
men  who  were  imbued  with  a  spirit  of  radical 
democracy  and  who  looked  with  suspicion  upon  all 
executive  power.  The  Constitution  thus  framed 
therefore  stripped  the  Executive  office  of  many  of  the 
functions  that  it  theretofore  had  and  added  enor- 
mously to  the  number  of  persons  to  be  elected 
by  the  people,  even  Judges  of  courts  of  record 


THE   STATE   CONSTITUTIONS.  255 

among  the  rest.  This  change,  for  reform  it  can 
scarcely  be  called,  was  adopted  in  other  States, 
and  it  is  only  in  recent  years  that  the  wis- 
dom of  the  change  has  been  questioned  and  some 
modifications  made  in  the  original  provision  of  the 
New  York  Constitution  of  1846,  and  those  of  other 
States.  It  was  found  that  electing  Judges  for  so 
short  a  period  of  years  as  that  provided  for  in  the 
Constitution  of  1846  of  the  State  of  New  York  re- 
sulted in  obtaining  in  many  instances,  as  Judges, 
mere  politicians  of  a  low  order.  It  therefore  be- 
came necessary  either  to  return  to  the  appointing 
power,  or  to  make  the  tenure  longer  and  the  salary 
larger,  so  as  to  make  the  Judge,  at  least  for  a  con- 
siderable period  of  time,  independent  of  the  favor  of 
political  parties.  By  amendments  of  1869  the  Judi- 
cial system  in  New  York  was  recast ;  the  Judges  of 
the  higher  courts  were  elected  for  a  period  of  four- 
teen years  instead  of  six,  as  theretofore,  and  public 
opinion  was  brought  to  bear  upon  the  question  of 
their  remuneration,  so  that  the  salary  of  the  Judges 
of  the  higher  courts  were  made  to  approximate 
a  little  more  closely  to  what  could  be  earned  by 
a  lawyer  in  active  practice.  The  opinion  of  the 
Bar,  as  expressed  by  organized  bodies  of  lawyers, 
has  been,  however,  almost  uniformly  in  favor  of  a 
return  to  the  system  of  appointment  by  the  Execu- 


256  CONSTITUTIONAL   HISTORY. 

tive :  as  the  people  as  a  whole,  under  existing 
American  political  conditions,  are  scarcely  the 
proper  custodians  of  the  power  wisely  to  select 
from  among  the  Bar,  the  men  who  are  best  qualified 
for  judicial  functions,  and  the  methods  resorted  to 
in  order  to  secure  nomination  for  judicial  offices 
are  oftentimes  in  themselves  so  demoralizing  that  it 
degrades  the  office  in  popular  esteem,  even  if  the 
s-election  of  the  people  on  the  whole  were  as  wise  as 
that  which  could  be  made  by  the  chief  executive 
officer  of  the  State,  acting  under  a  sense  of  his 
responsibility  to  the  people  for  making  a  proper 
selection.  The  appointment  to  vacancies  in  judicial 
offices  of  course  must  still  remain  with  the  Execu- 
tive, but  such  appointments  are  generally  limited 
until  either  the  next  succeeding  general  election 
or  the  election  following  the  next  succeeding  gen- 
eral election. 

A  firm  conviction  that  decentralization  of  power 
was  necessary  to  insure  honesty  in  the  administra- 
tion of  public  affairs  injected  into  almost  all  of 
these  Constitutions  the  requirement  that  munici- 
pal bodies  shall  elect  their  own  officers,  and  that 
no  one  was  to  hold  office  within  the  municipality 
unless  elected  directly  by  the  people  in  the  locali- 
ty or  appointed  by  an  elected  authority  therein. 
This  so  multiplied  elective  officers  within  the  State 


THE   STATE   CONSTITUTIONS.  257 

that  at  a  general  election  the  voter  is  bewildered 
with  the  number  of  people  he  is  called  upon  to  vote 
for,  and  he  finds  it,  therefore,  more  and  more  diffi- 
cult to  determine  upon  the  fitness  of  candidates, 
and  is  thus  put  at  the  mercy  of  political  wire  pul- 
lers and  leaders  who  make  the  selection  for  him 
and  call  upon  him  to  vote  aye  or  nay  between  two 
or  at  most  three  candidates  for  the  same  office. 
This  difficulty  has  not  yet  met  with  an  intelligent 
solution  at  the  hands  of  the  American  statesman. 

Anterior  to  the  adoption  of  the  Constitution  of 
1846  in  the  State  of  New  York,  and  which  is  here 
taken  as  an  example  of  the  leading  State  Constitu- 
tions, because,  as  before  stated,  the  amendments 
made  by  that  Constitution  were  extensively  followed 
in  other  States,  a  great  source  of  evil  was  that  the 
railway,  banking,  and  insurance  corporations  cre- 
ated so  formidable  a  lobby  to  secure  special  legis- 
lation and  privileges  for  the  benefit  of  such  corpora- 
tions, that  it  was  deemed  expedient  to  cause  general 
laws  to  be  passed  for  their  government,  and  restrain 
the  Legislature  thereafter  from  passing  special  laws 
upon  the  same  subjects.  As,  however,  the  Legisla- 
ture was  permitted  to  pass  special  laws  in  all  cases 
wherein  in  its  own  opinion  such  legislation  was 
necessary,  the  restriction,  except  as  to  banks  and 
insurance  companies,  was  not  a  very  efficient  one. 


258  CONSTITUTIONAL   HISTORY. 

This  question  of  special  legislation  is  one  which 
has  not  been  wisely  dealt  with  by  the  people  of  the 
United  States,  who  in  their  attempt  to  reform  the  evil 
arising  from  the  lobby  interested  in  pressing  for 
and  securing  such  special  legislation  have  fallen 
into  a  worse  evil. 

By  a  constitutional  amendment  adopted  in  the 
State  of  New  York  in  1874,  the  Legislature  of  the 
State  is  prohibited  from  passing  special  laws  in  a 
large  number  of  enumerated  cases  which  had  there- 
tofore been  the  lobbyist's  most  lucrative  field  of 
practice,  and  produced  the  greatest  amount  of  Cor- 
ruption. This  amendment  has  been  followed  in 
other  States.  Albeit  in  Missouri  and  Pennsylvania, 
constitutional  amendments  of  the  same  character 
had  been  adopted  even  prior  to  the  one  of  New 
York.  It  was  supposed  that  thereby  a  blow  would 
be  struck  at  corrupt  legislation,  and  that  the  Legis- 
lature would  be  free  to  pass  general  laws  upon  these 
matters  and  be  thereafter  absolved  from  all  further 
concern  in  relation  to  the  subject.  It  was  not  then 
seen  that  the  most  dangerous  form  of  special  legis- 
lation is  that  which  comes  under  the  guise  of  a 
general  law,  or  as  an  amendment  to  the  general 
law,  and  that  after  special  legislation  is  forbidden, 
all  persons  desiring  special  privileges  or  legislation 
to  meet  a  particular  case,  could  just  as  well  influence 


THE   STATE   CONSTITUTIONS.  259 

the  Legislature  to  amend  the  general  law  to  meet 
his  case  so  as  to  give  him  a  special  privilege,  as  to 
cause  a  special  law  to  be  passed.  In  that  manner 
one  law  after  another  has  been  placed,  since  1875, 
upon  the  statute  book  of  the  State  of  New  York 
and  other  States  which  followed  the  lead  of  New 
York,  having  their  origin  in  personal  interests  only, 
and  to  meet  special  cases,  thus  destroying  whatever 
there  was  of  harmonious  legislation  in  the  general 
body  of  the  law.  This  evil  is  more  insidious  and 
in  its  effects  much  more  dangerous  than  the  one 
which  it  was  intended  to  remedy,  and  is  one 
especially  mischievous  in  the  United  States,  be- 
cause, as  already  shown,  there  is  no  body  of  perma- 
nent legislators  standing  guard  over  the  laws  of 
the  State,  and  no  responsible  ministry  having 
charge  of  public  legislation  and  responsible  for  it. 
There  is  not  even  party  responsibility  in  relation  to 
such  laws,  which  are  passed  or  neglected  under  the 
pressure  of  private  interests  or  in  the  absence  of 
any  such  pressure  fail.  It  would  have  been  very 
much  wiser  to  have  methodized  legislation ;  to 
have  separated,  as  the  English  Parliament  has 
done,  public  or  general  legislation  from  all  leg- 
islation which  is  private  or  local  in  character  ;  to 
require  notice  of  application  for  private  or  local 
acts  before  the  convening  of  the  legislative  body ; 


260  CONSTITUTIONAL   HISTORY. 

to  treat  them  not  as  laws,  but  rather  in  the  nature 
of  judicial  determinations  on  the  part  of  the  Legis- 
lature after  a  trial  upon  their  merits  at  which  wit- 
nesses are  examined  and  a  trained  Bar  may  exert 
its  talents  for  or  against  the  bill,  and  secure  its 
proper  amendment.  This  would  convert  the  lobby 
into  a  parliamentary  bar  ;  would  bring  into  the 
sunlight  of  publicity  all  schemes,  be  they  of  a 
sinister  or  beneficial  character,  affecting  private 
individuals,  corporations  or  localities,  by  requiring 
application  for  such  special  legislation  to  be  filed 
before  the  opening  of  the  session,  and  due  notice  of 
trial  being  given  by  advertisement,  etc.,  thus  giving 
to  the  community  security  that  such  legislation 
cannot  be  smuggled  through  at  the  latter  end  of  the 
session,  and  enabling  all  opponents  to  be  heard 
upon  the  merits  as  to  the  impropriety  of  such  mea- 
sures. 

This  division  of  private  from  local  laws  would 
tend  also  to  elevate  the  character  of  public  legisla- 
tion ;  would  prevent  public  or  general  laws  from 
being  used  as  mere  instruments  of  private  gain,  and 
effectually  extirpate  the  evil  which  was  intended  to 
be  removed — a  corrupt  lobby  seeking  to  gain  an  ad- 
vantage from  the  community  by  the  secret  or  corrupt 
passage  of  improper  private  and  local  bills. 

The  almost  unlimited  power   of  municipalities 


THE   STATE   CONSTITUTIONS.  261 

and  counties  to  create  debts  for  their  own  purpose 
or  in  aid  of  public  works,  led  to  a  very  formidable 
evil  between  1850  and  1870  by  the  rolling  up  of 
enormous  local  public  debts  in  aid  of  railway  cor- 
porations. "While  in  many  instances  this  aid  was 
perhaps  necessary  and  judicious,  yet  it  led  to  so 
much  corruption  and  abuse  throughout  the  States, 
and  became  so  burdensome  upon  the  localities, 
which  frequently  after  the  aid  was  voted  failed 
to  get  the  public  improvement  for  the  purposes  for 
which  they  created  the  debt,  and  imposed  taxes 
upon  themselves,  that  in  almost  every  State  in  the 
Union  limitations  were  put  upon  the  lending  of  the 
public  credit  or  voting  aid  to  railway  corpora- 
tions by  counties  and  cities.  And  in  many  States 
such  aid  is  now  entirely  prohibited. 

The  abuses  incident  to  the  distribution  of  public 
funds  in  aid  of  charities  connected  with  religious 
establishments,  where  any  particular  religious  de- 
nomination prevailed,  as  particularly  in  the  city  of 
New  York,  became  of  so  grave  a  character  that  a 
constitutional  amendment  was  adopted,  and  in 
many  other  States  followed,  by  which  cities  were 
prohibited  from  granting  any  such  aid  to  religious 
institutions.  Exemptions  from  taxation  have  been 
a  fruitful  source  of  mischief  in  many  States  ;  insti- 
tutions of  a  charitable  and  religious  nature  have  en- 


262  CONSTITUTIONAL   HISTOEY. 

joyed  such  exemption  on  the  ground  that  impos- 
ing taxation  upon  the  values  of  their  property 
would  be  onerous  in  the  extreme,  it  being  dedicated 
in  a  certain  sense  to  public  use,  but  it  was  soon 
found  that  many  of  these  institutions  had  excep- 
tional advantages  for  property  not  actually  used  for 
charitable  or  religious  purposes,  and  which  property 
while  held  by  them  was  free  from  the  burdens  im- 
posed upon  the  taxpayers  of  the  State.  This 
led  to  amendments  of  some  of  the  State  Consti- 
tutions limiting  such  exemptions  to  the  building 
and  land  only  upon  which  is  erected  such  charitable 
or  religious  institution,  and  to  no  other  lands 
whatever. 

The  evils  of  corporate  management  have  caused 
several  of  the  States  to  provide  as  a  remedy  a  sys- 
tem of  minority  representation  in  the  election  of 
their  Boards  of  Direction  as  to  all  corporations 
thereafter  to  be  organized  ;  both  Pennsylvania  and 
Missouri  have  engrafted  such  provisions  upon  their 
Constitutions.  Illinois  in  the  selection  of  the  Legis- 
lature, and  Pennsylvania  in  the  election  of  Judges 
of  the.  Supreme  Court,  are  the  only  States  which 
adopted  minority  representation  for  political  offices. 
In  Illinois  minority  representation  is  secured  in 
all  legislative  districts  by  the  provision  that, 
in  all  elections  of  representatives,  each  qualified 


THE   STATE   CONSTITUTIONS. 


voter  may  cast  as  many  votes  for  one  candidate  as 
there  are  representatives  to  be  elected,  or  may  dis- 
tribute the  same  or  equal  parts  thereof  among  the 
candidates  as  he  may  see  fit.  This  secures,  in  a 
very  limited  way,  cumulative  voting  and  therefore 
minority  representation. 

In  some  of  the  States  the  agitation  for  women's 
rights  has  resulted  in  securing  for  married  women 
by  constitutional  provisions  or  legislation  an  un- 
disturbed enjoyment  of  property  rights.  In  none  of 
the  States,  however,  as  yet  have  women  become 
full  citizens. 

A  fruitful  source  of  recent  constitutional  amend- 
ments throughout  the  States  has  been  the  growing 
power  of  the  railroad  corporations.  In  almost  all 
the  Western  States  elaborate  provisions  are  con- 
tained in  the  State  Constitutions  by  recent  amend- 
ments by  which  railways  are  declared  to  be  public 
highways.  The  Legislature  is  required  to  pass 
laws  limiting  the  amount  of  charges ;  the  railway 
is  constitutionally  inhibited  from  discriminating  in 
charges  or  facilities  in  transportation,  or  making 
any  discrimination  between  transportation  compa- 
nies or  individuals,  either  by  way  of  abatement, 
drawback  or  otherwise,  and  also  from  making  any 
preference  in  furnishing  cars  or  motive  power 
between  different  individuals,  and  a  new  set  of 


264  CONSTITUTIONAL    HISTORY. 

officers,  known  as  Railway  Commissioners,  have 
been  called  into  existence.  The  great  State  of 
New  York  has  as  yet  not  acted  in  the  same 
direction,  but  this  defect  in  the  State  Constitu- 
tion is  now  in  process  of  being  remedied  by  legis- 
lation having  the  same  end  in  view. 

In  some  of  the  States  the  evil  of  constant  altera- 
tions in  the  law  and  the  uncertainties  created  thereby 
have  been  sought  to  be  prevented  by  constitu- 
tional changes  making  the  ses  sions  of  the  Legisla- 
ture biennial  instead  of  annual.  This  change 
appears  to  be  a  very  short-sighted  remedial  mea- 
sure for  an  undoubted  evil.  In  the  States  having 
biennial  Legislatures,  great  inconvenience  at  times 
results  from  the  impossibility  of  promptly  conven- 
ing the  Legislature  for  the  purpose  of  passing  a  law 
of  pressing  necessity.  If  less  attention  is  given  to 
the  quality  of  laws  to  be  passed,  as  many  bad  laws 
can  be  passed  in  a  short  session  of  one  Legislature 
as  in  two  sessions  of  consecutive  Legislatures.  The 
true  corrective  of  this  evil  is  the  one  already  re- 
ferred to  of  properly  methodizing  legislation,  and 
dividing  public  from  private  acts,  creating  also  some 
degree  of  responsibility  for  public  acts  by  having 
a  council  of  revision  or  some  public  body  to  whom 
the  public  acts  are  to  be  referred,  and  which  shall 
report  upon  the  same  as  an  Advisory  Board  to  the 


THE  STATE   CONSTITUTIONS.  265 

legislative  bodies.  Of  course,  the  main  evil  of  bad 
legislation  arises  from  the  fact  that  the  legislators 
are  not  qualified  for  their  work.  Annual  elections 
of  large  legislative  bodies  from  the  body  of  the 
people  or  the  members  of  political  caucuses,  small 
pay  for  the  time  given  to  the  public  during  that 
period,  and  the  unfortunate  American  political  con- 
ditions arising  from  the  domination  of  the  "  boss  " 
and  caucus  systems,  bring  as  a  general  rule  together 
in  the  legislative  halls  of  the  various  States  of  the 
Union  a  body  of  men  but  little  qualified  for  the 
most  important  work  that  can  be  entrusted  into  hu- 
man hands — that  of  legislating  wisely  and  well  for 
their  fellow-men.  This  evil  will  find  its  remedy  in 
the  United  States  only  after  a  considerable  period  of 
time.  One  of  the  conditions  of  its  correction  is,  as 
already  observed,  to  dissolve  political  parties  as  at 
present  constituted,  by  minority  representation, 
and  to  introduce  a  thorough  system  of  civil  service 
reform. 

The  development  of  individual  wealth  will  also 
in  time  come  to  the  aid  of  the  people  of  the  United 
States  ;  as  through  it  they  will  possess  a  body  of 
men  so  emancipated  from  all  necessity  of  looking 
after  their  personal  interests,  that  they  can  devote 
their  whole  time  to  the  public  service. 

The  change  from  annual  to  biennial  sessions  of 
12 


266  CONSTITUTIONAL   IIISTOEY. 

the  Legislature  seems  to  be  as  inadequate  for  the 
purpose  of  curing  the  evils  of  bad  legislation  as 
would  be  the  conduct  of  a  man  at  the  head  of  a  large 
industrial  establishment,  who,  finding  that  in 
consequence  of  its  mismanagement  by  his  super- 
intendents he  runs  behindhand  year  after  year, 
determines  to  work  but  half  time  as  a  corrective, 
instead  of  changing  hi^  managers  and  changing  his 
methods.  He  may  not  (if  he  is  doomed  to  run  be- 
hindhand) get  himself  into  the  bankruptcy  courts 
by  working  half  time  quite  as  fast  as  by  working 
full  time ;  but  it  clearly  would  be  better  for  him 
either  to  shut  up  shop  entirely,  or  to  reform  his 
methods  of  doing  business.  If  biennial  Legislatures 
is  a  remedy,  not  to  have  the  Legislatures  meet  at 
all  would  be  still  a  better  one  ;  but  this  mistaken 
measure  will  continue  to  be  adopted  precisely  as  the 
limitation  upon  the  special  legislation  has  run  its 
course  until  the  evils  occasioned  by  the  supposed 
change  or  reform  will  bring  the  people  of  the  United 
States  to  a  realizing  sense  of  the  fact  that  they  have 
gone  for  relief  in  the  wrong  direction. 

The  great  evil  in  connection  with  State  institu- 
tions is  that  which  arises  from  the  difficulty  in 
dealing  with  municipalities  so  as  to  leave  them  on 
the  one  hand  the  power  to  govern  themselves,  and 
yet  on  the  other  to  restrict  a  tendency  which  in  all 


THE   STATE   CONSTITUTIONS.  267 

* 

American  cities  has  developed  itself  to  an 
alarming  degree,  its  unlimited  debt-creating  power 
and  methods  of  unwise  taxation. 

Within  the  twenty  years  from  1860  to  1880,  the 
debts  of  the  cities  of  the  Union  rose  from  about 
$100,000,000  to  $682,000,000.  From  1860  to  1875, 
the  increase  of  debt  in  eleven  cities  was  270.9 
per  cent.  ;  increase  of  taxation,  362.2  per  cent. ; 
whereas  the  increase  in  taxable  valuation  was  but 
156.9  per  cent. ;  and  increase  in  population  but  70 
per  cent. 

A  large  part  of  this  increase  of  city  indebtedness 
is  doubtless  due  to  the  fact  that  in  a  concentrated 
community  wherein  the  vast  expenditures  involved 
in  city  administration  are  to  be  made,  such  expen- 
ditures in  themselves  exercise  a  corrupting  influ- 
ence upon  political  elections,  and  create  a  numerous 
body  of  voters  who,  by  reason  of  such  interest  in 
city  expenditures,  vote  for  and  maintain  in  office 
persons  pledged  to  increase  them,  or  in  any  event 
not  to  reduce  them.  Political  parties  find  in  the 
salaries  of  city  officials  and  the  numerous  indirect 
advantages  arising  from  the  contracts  to  be  awarded 
by  the  city  for  all  the  purposes  of  city  administra- 
tion, such  as  water  supply,  street  cleaning,  sewer- 
age, lighting,  etc.,  opening  of  streets  and  highways, 
an  enormous  fund  to  perpetuate  their  power  and  to 


268  CONSTITUTIONAL   HISTORY. 

supply  them  with  the  necessary  means  to  manipulate 
the  results  of  the  ballot  box ;  but  the  evil  is  not  due 
wholly  to  city  administrators  alone.  The  members 
of  the  Legislatures  of  the  various  States  have  found 
in  the  offices  of  a  great  city,  subject  to  their  sway, 
abundant  opportunities  for  placing  friends  in  office 
and  also  to  secure  personal  advantages  of  a  more 
lucrative  character. 

Before  the  charter  amendments  of  1871  for  the 
city  of  New  York,  the  annual  tax  levy  of  that  city, 
• — appropriations  for  the  various  purposes  and  ob- 
jects of  the  city  government — was  prepared  by  the 
Legislature  in  the  same  manner  as  the  supply  bill 
for  the  State  ;  and  the  corruptions  incident  to  the 
items  which  found  place  in  such  tax  levy  were 
greater  at  that  period  than  have  prevailed  since 
the  city  government  had  power  from  that  period 
on  to  determine  upon  the  amount  of  tax  to  be  raised 
and  the  purposes  for  which  it  was  to  be  expended, 
without  having  recourse  to  State  legislation.  Num- 
erous commissions  for  special  municipal  purposes 
were  appointed  by  the  Legislature,  having  indepen- 
dent powers  to  create  debt  without  any  vote  of  the 
city  or  any  part  of  its  inhabitants,  and  thus  not  only 
was  the  amount  annually  to  be  levied  by  tax  heavily 
increased  by  legislative  interference,  but  also  the 
permanent  debt  was  largely  increased,  frequently 


THE  STATE   CONSTITUTIONS.  269 

without  the  consent  and  at  all  times  without  the 
power  of  the  city  to  prevent  such  imposition. 

Therefore,  while  it  is  true  that  the  city  adminis- 
tration, when  left  to  itself  under  the  peculiar  cir- 
cumstances of  a  large  proletarian  class  in  every  city 
in  the  Union  having  voting  power,  is  likely  to  run 
into  excesses  of  debt  and  extravagant  administra- 
tion, recourse  to  the  Legislature  and  leaving  the 
city  powerless  to  administer  its  own  affairs,  has 
been  shown  by  past  experience  to  result  in  even 
worse  effects  than  decentralization  of  power  leads  to. 
This  condition  of  affairs  has  led  to  an  investiga- 
tion of  the  subject  to  what  extent  city  administration 
is  part  of  the  government  of  the  nation,  and  whether 
or  not  it  is  not  largely  the  mere  administration 
of  private  property  upon  a  cooperative  plan. 
Certainly  many  of  the  functions  of  the  city  gov- 
ernment, such  as  lighting,  paving,  and  laying 
out  of  streets,  and  the  supply  of  water,  are 
not  truly  governmental  functions,  but  private  ser- 
vices, which  are  performed  under  governmental 
forms  for  the  owners  of  real  estate  who  would 
themselves  provide  such  service  in  the  absence  of 
any  government  taking  it  in  charge.  Various  efforts 
have  been  made,  therefore,  to  create  somewhere  in 
the  city  administration  a  veto  power,  lodged  in  the 
hands  of  tax  and  rent  payers,  upon  such  expendi- 


270  CONSTITUTIONAL    HISTORY. 

tures  without  thereby  limiting  the  suffrage  as  to  any 
general  governmental  city  functions.  Thus  far  these 
efforts  have  not  only  proved  unavailing,  but  have 
cast  some  degree  of  odium  upon  their  advocates  as 
being  supposed  to  be  adverse  to  the  fundamental 
principles  upon  which  the  institution  of  American 
governments  are  based.  That  this  charge  against 
them  is  not  true  does  not  seem  much  to  affect  the 
question,  because  large  bodies  of  people  do  not 
closely  analyze,  and  it  requires  some  intellectual 
effort  to  appreciate  the  difference  between  a  city  ad- 
ministration and  the  general  Government.  That  the 
tax-eaters  should  not  have  absolute  control  over  the 
taxes  to  be  expended  by  the  tax-payers  would  appear 

P 

to  be  an  entirely  axiomatic  truth  in  political  philos- 
ophy. That  the  population  of  cities  will  increase, 
and  that  the  pressure  of  competition  will  necessarily 
add  largely  to  the  proletariat  class  when  any  check 
comes  to  the  prosperity  of  the  people,  would  also 
appear  to  be  almost  as  self-evident.  Sooner  or  later, 
therefore,  the  people  of  the  United  States  will  either 
have  to  adopt  some  method  of  city  administration  not 
copied  from  the  administrative  forms  of  the  United 
States  or  the  States,  by  which  such  a  regulation 
of  the  suffrage  shall  take  place  that  those  who  have 
a  permanent  stake  in  the  community  shall,  upon 
all  expenditures  involving  large  amounts  in  cities, 


THE   STATE   CONSTITUTIONS.  271 

have  some  voice  in  determining  the  amount  and 
purposes  of  such  expenditures  ;  or  fairly  and  freely 
recourse  must  be  had  to  a  system  of  minority  repre- 
sentation to  secure  this  result.  Indeed  the  adoption 
of  the  latter  reform  would,  without  resort  to  any 
limitation  of  suffrage,  in  itself,  check  the  ex- 
travagant, corrupt  and  useless  expenditures  in 
cities ;  but  in  the  absence  of  the  introduc- 
tion of  any  such  system,  the  problem  is  becoming 
a  very  serious  one  as  to  how,  with  the  growth 
of  a  pauper  element,  property  rights  in  cities  can 
be  protected  from  confiscation  at  the  hands  of  the 
non-producing  classes.  That  the  suffrage  is  a 
spear  as  well  as  a  shield  is  a  fact  which  many 
writers  on  suffrage  leave  out  of  sight;  that  it 
not  only  protects  the  holder  of  the  vote  from  ag- 
gression, from  which  point  of  view  it  is  unobjec- 
tionable, but  also  enables  him  to  aggress  upon  the 
rights  of  others  by  means  of  the  taxing  power,  is  a 
fact  to  which  more  and  more  weight  must  be  given  as 
population  increases  and  the  suffrage  is  extended. 
Some  of  the  evils  incident  to  city  government  in 
the  United  States  are  remediable  by  other  means. 
One  of  the  fruitful  sources  of  evil  influences  exercised 
upon  municipal  administrations  arises  from  a  false 
distribution  of  power  in  the  city  governments. 
Departments  which  should  be  under  some  central 


272  CONSTITUTIONAL  HISTOKY. 

authority  and  responsible  to  it,  the  members  of 
which  should  be  removable  by  the  Mayor  at  will, 
who  in  turn  is  responsible  for  the  good  government 
of  the  city  to  its  inhabitants,  have  become  inde- 
pendent bodies  having  debt-creating  power  without 
central  control. 

The  city  council  chamber,  even  when  not  strip- 
ped of  all  responsible  legislative  functions,  as  has 
been  notably  the  case  in  the  city  of  New  York,  is 
called  into  being  under  a  faulty  system.  Small 
districts  are  created  for  the  election  of  members  of 
the  Board  of  Aldermen,  and  frequently  a  provision 
is  made  by  which  minorities  and  majorities  in  the 
districts  have  equal  representation,  so  that  either 
small  politicans  come  to  the  surface  in  consequence 
of  the  small  district,  or  caucus  nominations  are 
equivalent  to  an  election,  and  the  election  becomes 
a  mere  form.  This  has  at  times  been  called  minor- 
ity representation,  but  it  is  not  so  ia  any  proper 
sense,  as  it  is  mere  party  representation,  and  not 
representation  of  the  people. 

Attempts  have  been  made  in  some  of  the  Consti- 
tutions of  the  States  by  limiting  the  ratio  of  assess- 
ment to  check  extravagance,  but  this  has  proved 
quite  futile  as  a  remedy,  because  the  law  is  evaded 
by  increasing  the  assessment  so  as  to  keep  within 
the  ratio,  so  that  in  some  of  the  cities  where  such  a 


THE   STATE   CONSTITUTIONS.  273 

limitation  has  prevailed  the  assessed  value  of  prop- 
erty is  largely  in  excess  of  its  actual  value,  and  the 
ratio  of  taxation  takes  a  considerable  proportion  of 
the  actual  rental  value  of  real  property. 

The  laws  in  relation  to  cities  are  so  constantly 
changed  by  the  political  parties  in  power  within 
the  State,  so  as  to  increase  patronage  in  favor  of 
the  party  in  power,  and  to  decrease  it  as  against 
the  adverse  party,  by  either  change  of  officials  in 
office  or  a  transfer  of  large  powers  from  one  de- 
partment to  another,  that  the  Chief  Justice  of  the 
State  of  New  York  in  1875,  in  a  judicial  opinion 
stated  that  "  it  is  clearly  unsafe  for  any  one  to 
speak  confidently  of  the  exact  condition  of  the 
law  in  respect  to  public  improvements  in  the  cities 
of  New  York  and  Brooklyn.  The  enactments  with 
reference  thereto  have  been  modified,  superseded 
and  repealed  so  often  and  to  such  an  extent  that  it 
is  difficult  to  ascertain  just  what  statutes  are  in 
force  at  any  particular  time."  This  grave  condi- 
tion of  affairs  has  led  many  of  the  States  to  appoint 
bodies  of  men  especially  commissioned  to  inquire 
into  the  causes  of  these  evils,  and  to  suggest  reme- 
dies. New  York,  Pennsylvania  and  New  Jersey  have 
received  reports  from  the  commissions  thus  ap- 
pointed, but  the  remedies  proposed  threatened 
so  seriously  to  impair  both  the  power  and  the 
12* 


274  CONSTITUTIONAL   HISTORY. 

patronage  of  the  politicians  that  they  failed  of  ac- 
ceptance. 

It  will  be  found  that  the  main  remedy  for  almost 
all  the  evils  of  administrative  machinery  of  Ameri- 
can cities  will  be  in  the  adoption  of  a  constitutional 
limitation  upon  the  power  to  create  indebtedness, 
and  constitutional  inhibition  upon  the  Legislature 
to  interfere  with  the  city's  administration  unless 
such  legislation  is  demanded  by  the  inhabitants  of 
the  city  in  some  form  or  manner,  and  the  remodel- 
ing of  city  charters  so  as  to  centre  responsibility 
in  the  Mayor  and  the  Board  of  Aldermen,  and  to 
subordinate  all  executive  heads  of  departments 
to  the  Mayor  and  to  the  legislative  departments  of 
the  city. 


APPENDIX. 


ARTICLES    OF   CONFEDERATION  AND    PERPETUAL 
UNION    BETWEEN   THE   STATES. 

TO  ALL  TO  WHOM  THESE  PRESENTS  SHALL  COME, 
WE  THE  UNDERSIGNED  DELEGATES  OF  THE  STATES 
AFFIXED  TO  OUR  NAMES,  SEND  GREETING.—  Whereas 
the  Delegates  of  the  United  States  of  America  in  Congress 
assembled  did  on  the  15th  day  of  November  in  the  Year  of 
our  Lord  1777,  and  in  the  Second  Year  of  the  Independence 
of  America  agree  to  certain  articles  of  Confederation  and  per- 
petual Union  between  the  States  of  New  Hampshire,  Massa- 
chusetts-bay, Rhode-island  and  Providence  Plantations,  Con- 
necticut, New-York,  New-Jersey,  Pennsylvania,  Delaware, 
Maryland,  Virginia,  North-Carolina,  South-Carolina,  and 
Georgia,  in  the  words  following,  viz. 

"ARTICLES  OF  CONFEDERATION  AND  PERPETUAL 
UNION  BETWEEN  THE  STATES  OF  NEW-HAMP- 
SHIRE, MASSACHUSETTS-BAY,  RHODE-ISLAND  AND 
PROVIDENCE  PLANTATIONS,  CONNECTICUT,  NEW- 
YORK,  NEW-JERSEY,  PENNSYLVANIA,  DELAWARE, 
MARYLAND,  VIRGINIA,  NORTH-CAROLINA,  SOUTH- 
CAROLINA,  AND  GEORGIA. 

ARTICLE  I.  The  Stile  of  this  confederacy  shall  be  "The 
United  States  of  America." 

275 


276  APPENDIX. 

ARTICLE  II.  Each  state  retains  its  sovereignty,  freedom 
and  independence,  and  every  Power,  Jurisdiction  and  right, 
•which  is  not  by  this  confederation  expressly  delegated  to  the 
united  states,  in  congress  assembled. 

ARTICLE  III.  The  said  states  hereby  severally  enter  into  a 
firm  league  of  friendship  with  each  other,  for  their  common 
defence,  the  security  of  their  Liberties,  and  their  mutual  and 
general  welfare,  binding  themselves  to  assist  each  other,  against 
all  force  offered  to,  or  attacks  made  upon  them,  or  any  of  them, 
on  account  of  religion,  sovereignty,  trade,  or  any  other  pre- 
tence whatever. 

ARTICLE  IV.  The  better  to  secure  and  perpetuate  mutual 
friendship  and  intercourse  among  the  people  of  the  different 
states  in  this  union,  the  free  inhabitants  of  each  of  these  states, 
paupers,  vagabonds,  and  fugitives  from  Justice  excepted,  shall 
be  entitled  to  all  privileges  and  immunities  of  free  citizens  in 
the  several  states ;  and  the  people  of  each  state  shall  have  free 
ingress  and  regress  to  and  from  any  other  state,  and  shall 
enjoy  therein  all  the  privileges  of  trade  and  commerce,  subject 
to  the  same  duties,  impositions  and  restrictions  as  the  inhabit- 
ants thereof  respectively,  provided  that  such  restriction  shall 
not  extend  so  far  as  to  prevent  the  removal  of  property  im- 
ported into  any  state,  to  any  other  state  of  which  the  Owner 
is  an  inhabitant ;  provided  also  that  no  imposition,  duties  or 
restriction  shall  be  laid  by  any  state,  on  the  property  of  the 
united  states,  or  either  of  them. 

If  any  person  guilty  of,  or  charged  with  treason,  felony,  or 
other  high  misdemeanor  in  any  state,  shall  flee  from  Justice, 
and  be  found  in  any  of  the  united  states,  he  shall  upon  de- 
mand of  the  Governor  or  executive  power,  of  the  state  from 
which  he  fled,  be  delivered  up  and  removed  to  the  state  hav- 
ing jurisdiction  of  his  offence.  . 

Full  faith  and  credit  shall  be  given  in  each  of  these  states 
to  the  records,  acts  and  judicial  proceedings  of  the  courts  and 
magistrates  of  every  other  state. 


APPENDIX.  277 

.ARTICLE  V.  For  the  more  convenient  management  of  the 
general  interest  of  the  united  states,  delegates  shall  be  annu- 
ally appointed  in  such  manner  as  the  legislature  of  each  state 
shall  direct,  to  meet  in  congress  on  the  first  Monday  in  No- 
beuiber,  in  every  year,  with  a  power  reserved  to  each  state, 
to  recal  its  delegates,  or  any  of  them,  at  any  time  within  the 
year,  and  to  send  others  in  their  stead,  for  the  remainder  of 
the  Year. 

No  state  shall  be  represented  in  congress  by  less  than  two, 
nor  by  more  than  seven  members;  and  no  person  shall  be 
capable  of  being  a  delegate  for  more  than  three  years  in  any 
term  of  six  years;  nor  shall  any  person,  being  a  delegate,  be 
capable  of  holding  any  office  under  the  united  states,  for  which 
he  or  another  for  his  benefit,  receives  any  salary,  fees  or  emol- 
ument of  any  kind. 

Each  state  shall  maintain  its  own  delegates  in  any  meeting 
of  the  states,  and  while  they  act  as  members  of  the  committee 
of  the  states. 

In  determining  questions  in  the  united  states,  in  congress 
assembled,  each  state  shall  have  one  vote. 

Freedom  of  speech  and  debate  in  congress  shall  not  be  im- 
peached or  questioned  in  any  Court,  or  place  out  of  congress, 
and  the  members  of  congress  shall  be  protected  in  their  per- 
sons from  arrests  and  imprisonments,  during  the  time  of  their 
going  to  and  from,  and  attendance  on  congress,  except  for 
treason,  felony,  or  breach  of  the  peace. 

ARTICLE  VI.  No  state  without  the  Consent  of  the  united 
states  in  congress  assembled,  shall  send  any  embassy  to,  or 
receive  any  embassy  from,  or  enter  into  any  conference,  agree- 
ment, alliance  or  treaty  with  any  King  prince  or  state ;  nor 
shall  any  person  holding  any  office  of  profit  or  trust  under  the 
united  states,  or  any  of  them,  accept  of  any  present,  emolu- 
ment, office  or  title  of  any  kind  whatever  from  any  king, 
prince  or  foreign  state  ;  nor  shall  the  united  states  in  congress 
assembled,  or  any  of  them,  grant  any  title  of  nobility. 


278  APPENDIX. 

No  two  or  more  states  shall  enter  into  any  treaty,  confedera- 
tion or  alliance  whatever  between  them,  without  the  consent 
of  the  united  states  in  congress  assembled,  specifying  accu- 
rately the  purposes  for  which  the  same  is  to  be  entered  into, 
and  how  long  it  shall  continue. 

No  state  shall  lay  any  imposts  or  duties,  which  may  inter- 
fere witli  any  stipulations  in  treaties,  entered  into  by  the 
united  states  in  congress  assembled,  with  any  king,  prince  or 
state,  in  pursuance  of  any  treaties  already  proposed  by  con- 
gress, to  the  courts  of  France  and  Spain. 

No  vessels  of  war  shall  be  kept  up  in  time  of  peace  by  any 
state,  except  such  number  only,  as  shall  be  deemed  necessary 
by  the  united  states  in  congress  assembled,  for  the  defence  of 
such  state,  or  its  trade  ;  nor  shall  any  body  of  forces  be  kept 
up  by  any  state,  in  time  of  peace,  except  such  number  only,  as 
in  the  judgment  of  the  united  states,  in  congress  assembled, 
shall  be  deemed  requisite  to  garrison  the  forts  necessary  for 
the  defence  of  such  state  ;  but  every  state  shall  always  keep 
up  a  well  regulated  and  disciplined  militia,  sufficiently  armed 
and  accoutred,  and  shall  provide  and  have  constantly  ready  for 
use,  in  public  stores,  a  due  number  of  field  pieces  and  tents, 
and  a  proper  quantity  of  arms,  ammunition  and  camp  equi- 
page. 

No  state  shall  engage  in  any  war  without  the  consent  of  the 
united  states  in  congress  assembled,  unless  such  state  be 
actually  invaded  by  enemies,  or  shall  have  received  certain 
advice  of  a  resolution  being  formed  by  some  nation  of  Indians 
to  invade  such  state,  and  the  danger  is  so  imminent  as  not  to 

O 

admit  of  a  delay,  till  the  united  states  in  congress  assembled 
can  be  consulted  :  nor  shall  any  state  errant  commissions  to  any 
ships  or  vessels  of  war,  nor  letters  of  marque  or  reprisal, 
except  it  be  after  a  declaration  of  war  by  the  united  states  in 
congress  assembled,  and  then  only  against  the  kingdom  or 
state  and  the  subjects  thereof,  against  which  war  has  been  so 
declared,  and  under  such  regulations  as  shall  be  established 
by  the  united  states  in  congress  assembled,  unless  such  state 


APPENDIX.  279 

be  infested  by  pirates,  in  which  case  vessels  of  war  may  be 
fitted  out  for  that  occasion,  and  kept  so  long  as  the  danger 
shall  continue,  or  until  the  united  states  in  congress  assem- 
bled shall  determine  otherwise. 

ARTICLE  YIT.  When  land-forces  are  raised  by  any  state 
for  the  common  defence,  all  officers  of  or  under  the  rank  of 
colonel,  sh:ll  be  appointed  by  the  legislature  of  each  state 
respectively  by  whom  such  forces  shall  be  raised,  or  in  such 
manner  as  such  state  shall  direct,  and  all  vacancies  shall  be 
filled  up  by  the  state  which  first  made  the  appointment. 

ARTICLE  VIII.  All  charges  of  war,  and  all  other  expenses 
that  shall  be  incurred  for  the  common  defence  or  general  wel- 
fare, and  allowed  by  the  united  states  in  congress  assembled, 
shall  be  defrayed  out  of  a  common  treasury,  which  shall  be 
supplied  by  the  several  states,  in  proportion  to  the  value  of  all 
land  within  each  state,  granted  to  or  surveyed  for  any  Person, 
as  such  land  and  the  buildings  and  improvements  thereon 
shall  be  estimated  according  to  such  mode  as  the  united  states 
in  congress  assembled,  shall  from  time  to  time,  direct  and 
appoint.  The  taxes  for  paying  that  proportion  shall  be  laid 
and  levied  by  the  authority  and  direction  of  the  legislatures  of 
the  several  states  within  the  time  agreed  upon  by  the  united 
states  in  congress  assembled. 

ARTICLE  IX.  The  united  states  in  congress  assembled, 
shall  have  the  sole  and  exclusive  right  and  power  of  deter- 
mining on  peace  and  war,  except  in  the  cases  mentioned  in 
the  6th  article — of  sending  and  receiving  ambassadors — 
entering  into  treaties  and  alliances,  provided  that  no  treaty 
of  commerce  shall  be  made  whereby  the  legislative  power  of 
the  respective  states  shall  be  restrained  from  imposing  such 
imposts  and  duties  on  foreigners,  as  their  own  people  are  sub- 
jected to,  or  from  prohibiting  the  exportation  or  importation 
of  any  species  of  goods  or  commodities  whatsoever — of  estab- 


280  APPENDIX. 

lishing  rules  for  deciding  in  all  cases,  what  captures  on  land 
or  water  shall  be  legal,  and  in  what  manner  prizes  taken 
by  land  or  naval  forces  in  the  service  of  the  united  states 
shall  be  divided  or  appropriated — of  granting  letters  of  niarque 
and  reprisal  in  times  of  peace — appointing  courts  for  the  trial 
of  piracies  and  felonies  committed  on  the  high  seas  and  estab- 
lishing courts  for  receiving  and  determining  finally  appeals  in 
all  cases  of  captures,  provided  that  no  member  of  congress 
shall  be  appointed  a  judge  of  any  of  the  said  courts. 

The  united  states  in  congress  assembled  shall  also  be  the 
last  resort  on  appeal  in  all  disputes^  and  differences  now  sub- 
sisting or  that  hereafter  may  arise  between  two  or  more  states 
concerning  boundary,  jurisdiction  or  any  other  cause  what- 
ever ;  which  authority  shall  always  be  exercised  in  the  man- 
ner following.  Whenever  the  legislative  or  executive 
authority  or  lawful  agent  of  any  state  in  controversy  with 
another  shall  present  a  petition  to  congress,  stating  the  mat- 
ter in  question  and  praying  for  a  hearinir,  notice  thereof  shall 
be  given  by  order  of  congress  to  the  legislative  or  executive 
authority  of  the  other  state  in  controversy,  and  a  day  assigned 
for  the  appearance  of  the  parties  by  their  lawful  agents,  who 
shall  then  be  directed  to  appoint  by  joint  consent,  commis- 
sioners or  judges  to  constitute  a  court  for  hearing  and  deter- 
mining the  matter  in  question  :  but  if  they  cannot  agree, 
congress  shall  name  three  persons  out  of  each  of  the  united 
states,  and  from  the  list  of  such  persons  each  party  shall 
alternately  strike  out  one,  the  petitioners  beginning,  until  the 
number  shall  be  reduced  to  thirteen  ;  and  from  that  number 
not  less  than  seven,  nor  more  than  nine  names  as  congress 
shall  direct,  shall  in  the  presence  of  congress  be  drawn  out  by 
lot,  and  the  persons  whose  names  shall  be  so  drawn  or  any 
five  of  them,  shall  be  commissioners  or  judges,  to  hear  and 
finally  determine  the  controversy,  so  always  as  a  major  part  of 
the  judges  who  shall  hear  the  cause  shall  agree  in  the  determi- 
nation :  and  if  either  party  shall  neglect  to  attend  at  the  day  ap- 
pointed, without  showing  reasons,  which  congress  shall  judge 


APPENDIX.  281 

sufficient,  or  being  present  shall  refuse  to  strike,  the  congress 
shall  proceed  to  nominate  three  persons  out  of  each  state,  and 
the  secretary  of  congress  shall  strike  in  behalf  of  such  party  ab- 
sent or  refusing  ;  and  the  judgment  and  sentence  of  the  court 
to  be  appointed,  in  the  manner  before  prescribed,  shall  be  final 
and  conclusive ;  and  if  any  of  the  parties  shall  refuse  to  submit 
to  the  authority  of  sucli  court,  or  to  appear  or  defend  their  claim 
or  cause,  the'court  shall  nevertheless  proceed  to  pronounce  sen- 
tence, or  judgment,  which  shall  in  like  manner  be  final  and  de- 
cisive, the  judgment,  or  sentence  and  other  proceedings  being 
in  either  case  transmitted  to  congress,  and  lodged  among  the 
acts  of  congress  for  the  security  of  the  parties  concerned  : 
provided  that  every  commissioner,  before  he  sits  in  judgment, 
shall  take  an  oath  to  be  administered  by  one  of  the  judges  of 
the  supreme  or  superior  court  of  the  state,  where  the  cause 
shall  be  tried,  "  well  and  truly  to  hear  and  determine  the  mat- 
ter in  question,  according  to  the  best  of  his  judgment,  without 
favour,  affection  or  hope  of  reward  :  "  provided  also  that  no 
state  shall  be  deprived  of  territory  for  the  benefit  of  the  united 
states. 

All  controversies  concerning  the  private  right  of  soil 
claimed  under  different  grants  of  two  or  more  states,  whose 
jurisdictions  as  they  may  respect  such  lands,  and  the  states 
which  passed  such  grants  are  adjusted,  the  said  grants  or 
either  of  them  beiug  at  the  same  time  claimed  to  have  orig- 
inated antecedent  to  such  settlement  of  jurisdiction,  shall,  on 
the  petition  of  either  party  to  the  congress  of  the  united 
states,  be  finally  determined  as  near  as  may  be  in  the  same 
manner  as  is  before  prescribed  for  deciding  disputes  respect- 
ing territorial  jurisdiction  between  different  states. 

The  united  states  in  congress  assembled  shall  also  have 
the  sole  and  exclusive  right  and  power  of  regulating  the  alloy 
and  value  of  coin  struck  by  their  own  authority,  or  by  that 
of  the  respective  states — fixing  the  standard  of  weights  and 
measures  throughout  the  United  States— regulating  the  trade 
and  managing  all  affairs  with  the  Indians,  not  members  of 


282  APPENDIX. 

any  of  the  states,  provided  that  the  legislative  right  of  any 
state  within  its  own  limits  be  not  infringed  or  violated — 
establishing  or  regulating  post-offices  from  one  state  to  an- 
other, throughout  all  the  united  states,  and  exacting  such 
postage  on  the  papers  passing  thro'  the  same  as  may  be 
requisite  to  defray  the  expenses  of  the  said  office — appointing 
all  officers  of  the  land  forces,  in  the  service  of  the  united 
states,  excepting  regimental  officers — appointing  all  the 
officers  of  the  naval  forces,  and  commissioning  all  officers 
whatever  in  the  service  of  the  united  states — making  rules  for 
the  government  and  regulation  of  the  said  land  and  naval 
forces,  and  directing  their  operations. 

The  united  states  in  congress  assembled  shall  have  authority 
to  appoint  a  committee,  to  sit  in  the  recess  of  congress,  to  be 
denominated  "A  Committee  of  the  States,"  and  to  consist 
of  one  delegate  from  each  state ;  and  to  appoint  such  other 
committees  and  civil  officers  as  may  be  necessary  for  man- 
aging the  general  affairs  of  the  united  states  under  their 
direction — to  appoint  one  of  their  number  to  preside,  pro- 
vided that  no  person  be  allowed  to  serve  in  the  office  of 
president  more  than  one  year  in  any  term  of  three  years ; 
to  ascertain  the  necessary  sums  of  Money  to  be  raised  for  the 
service  of  the  united  states,  and  to  appropriate  and  apply 
the  same  for  defraying  the  public  expenses — to  borrow 
money,  or  emit  bills  on  the  credit  of  the  united  states,  trans- 
mitting every  half  year  to  the  respective  states  an  account  of 
the  sums  of  money  so  borrowed  or  emitted, — to  build  and 
equip  a  navy — to  agree  upon  the  number  of  land  forces,  and 
to  make  requisitions  from  each  state  for  its  quota,  in  pro- 
portion to  the  number  of  white  inhabitants  in  such  state; 
which  requisition  shall  be  binding,  and  thereupon  the  legis- 
lature of  each  state  shall  appoint  the  regimental  officers, 
raise  the  men  and  cloath,  arm  and  equip  them  in  a  soldier 
like  manner,  at  the  expense  of  the  united  states;  and  the 
officers  and  men  so  cloathed,  armed  and  equipped  shall 
march  to  the  place  appointed,  and  within  the  time  agreed  on 


APPENDIX.  283 

by  the  united  states  in  congress  assembled :  But  if  the  united 
states  in  congress  assembled  shall,  on  consideration  of  cir- 
cumstances judge  proper  that  any  state  should  not  raise  men, 
or  should  raise  a  smaller  number  than  its  quota,  and  that  any 
other  state  should  raise  a  greater  number  of  men  than  the 
quota  thereof,  such  extra  number  shall  be  raised,  officered, 
cloatlicd,  armed  and  equipped  in  the  same  manner  as  the 
quota  of  such  state,  unless  the  legislature  of  such  state  shall 
judge  that  such  extra  number  cannot  be  safely  spared  out  of 
the  same,  in  which  case  they  shall  raise,  officer,  cloath,  arm 
and  equip  as  many  of  such  extra  number  as  they  judge  can 
be  safely  spared.  And  the  officers  and  men  so  cloathed, 
armed  and  equipped,  shall  march  to  the  place  appointed, 
and  within  the  time  agreed  on  by  the  united  states  in  con- 
gress assembled. 

The  united  states  in  congress  assembled  shall  never  engage 
in  a  war,  nor  grant  letters  of  marque  and  reprisal  in  time 
of  peace,  nor  enter  into  any  treaties  or  alliances,  nor  coin 
money,  nor  regulate  the  value  thereof,  nor  ascertain  the  sums 
and  expenses  necessary  for  the  defence  and  welfare  of  the 
united  states,  or  any  of  them,  nor  emit  bills,  nor  borrow 
money  on  the  credit  of  the  united  states,  nor  appropriate 
money,  nor  agree  upon  the  number  of  vessels  of  war,  to  be 
built  or  purchased,  or  the  number  of  land  or  sea  forces  to 
be  raised,  nor  appoint  a  commander  in  chief  of  the  army  or 
navy,  unless  nine  states  asseirt  to  the  same:  nor  shall  a 
question  on  any  other  point,  except  for  adjourning  from  day 
to  day,  be  determined,  unless  by  the  votes  of  a  majority  of 
the  united  states  in  congress  assembled. 

The  Congress  of  the  united  states  shall  have  power  to 
adjourn  to  any  time  within  the  year,  and  to  any  place  within 
the  united  states,  so  that  no  period  of  adjournment  be  for  a 
longer  duration  than  the  space  of  six  months,  and  shall  pub- 
lish the  Journal  of  their  proceedings  monthly,  except  such 
parts  thereof  relating  to  treaties,  alliances  or  military  opera- 
tions, as  in  their  judgment  require  secrecy;  and  the  yeas  and 


284  APPEKDIX. 

nays  of  the  delegates  of  each  state  on  any  question  shall  be 
entered  on  the  Journal,  when  it  is  desired  by  any  delegate; 
and  the  delegates  of  a  state,  or  any  of  them,  at  his  or  their 
request  shall  be  furnished  with  a  transcript  of  the  said  Jour- 
nal, except  such  parts  as  are  above  excepted,  to  lay  before 
the  legislatures  of  the  several  states. 

ARTICLE  X.  The  committee  of  the  states,  or  any  nine  of 
them,  shall  be  authorized  to  execute,  in  the  recess  of  con- 
gress, such  of  the  powers  of  congress  as  the  united  states  in 
congress  assembled,  by  the  consent  of  nine  states,  shall  from 
time  to  time  think  expedient  to  vest  them  with;  provided 
that  no  power  be  delegated  to  the  said  committee,  for  the  ex- 
ercise of  which,  by  the  articles  of  confederation,  the  voice  of 
nine  states  in  the  congress  of  the  united  states  assembled  is 
requisite. 

ARTICLE  XI.  Canada  acceding  to  this  confederation,  and 
joining  in  the  measures  of  the  united  states,  shall  be  admitted 
into,  and  entitled  to  all  the  advantages  of  this  union :  but  no 
other  colony  shall  be  admitted  into  the  same,  unless  such  ad- 
mission be  agreed  to  by  nine  states. 

ARTICLE  XII.  All  bills  of  credit  emitted,  monies  bor- 
rowed and  debts  contracted,  by  or  under  the  authority  of 
congress,  before  the  assembling  of  the  united  states,  in  pur- 
suance of  the  present  confederation,  shall  be  deemed  and 
considered  as  a  charge  against  the  United  States,  for  pay- 
ment and  satisfaction  whereof  the  said  united  states,  and  the 
public  faith  are  hereby  solemnly  pledged. 

ARTICLE  XIII.  Every  state  shall  abide  by  the  determina- 
tions of  the  united  states  in  congress  assembled,  on  all  ques- 
tions which  by  this  confederation  is  submitted  to  them. 
And  the  Articles  of  this  confederation  shall  be  inviolably  ob- 
served by  every  state,  and  the  union  shall  be  perpetual;  nor 
shall  any  alteration  at  any  time  hereafter  be  made  in  any  of 


APPENDIX.  285 

them ;  unless  such  alteration  be  agreed  to  in  a  congress  of 
the  united  states,  and  be  afterwards  confirmed  by  the  le^is- 
latures  of  every  state. 

And  Whereas  it  hath  pleased  the  Great  Governor  of  the 
World  to  incline  the  hearts  of  the  legislatures  we  respectively 
represent  in  congress,  to  approve  of,  and  to  authorize  us  to 
ratify  the  said  articles  of  confederation  and  perpetual  union. 
Know  Ye,  that  we  the  undersigned  delegates,  by  virtue  of 
the  power  and  authority  to  us  gievn  for  that  purpose,  do  by 
these  presents,  in  the  name  and  in  behalf  of  our  respective 
constituents,  fully  and  entirely  ratify  and  confirm  each  and 
every  of  the  said  articles  of  confederation  and  perpetual 
union,  and  all  and  singular  the  matters  and  things  therein 
contained:  And  we  do  further  solemnly  plight  and  engage 
the  faith  of  our  respective  constituents,  that  they  shall  abide 
by  the  determinations  of  the  united  states  in  congress  assem- 
bled, on  all  questions,  which  by  the  said  confederation  are 
submitted  to  them.  And  that  the  articles  thereof  shall  be  in- 
violably observed  by  the  states  we  respectively  represent,  and 
that  the  union  shall  be  perpetual.  In  witness  whereof  we 
have  hereunto  set  our  hands  in  Congress.  Done  at  Philadel- 
phia in  the  state  of  Pennsylvania  the  9th  Day  of  July  in  the 
Year  of  our  Lord,  1778,  and  in  the  3d  year  of  the  Independ- 
ence of  America. 

On  the  part  and  behalf  of  the  state  of  New  Hampshire, 

Josiah  Bartlett, 
John  Wentworth,  jun., 

August  8th,  1778. 

On  the  part  and  behalf  of  the  state  of  Massachusetts-Bay, 

John  Hancock, 
Samuel  Adams, 
Elbridge  Gerry, 
Francis  Dana, 
James  Lovell, 
Samuel  Holten. 


286  APPENDIX. 

On  the   part   and  behalf  of  the  state  of  Rhode-Island  and 
Providence  Plantations, 

"William  Ellery, 
Henry  Marchant, 
John  Collins. 

On  the  part  and  behalf  of  the  state  of  Connecticut, 

Roger  Sherman, 
Samuel  Huntington, 
Oliver  Wolcott, 
Titus  Hosmer, 
Andrew  Adam. 

On  the  part  and  behalf  of  the  state  of  New  York, 

Jas  Duane, 
Fras  Lewis, 
William  Duer, 
Gouv  Morris. 

On  the  part  and  behalf  of  the  state  of  New  Jersey,  Novem- 
ber 26th,  1778, 

Jri°  "Witherspoon, 
Nath1  Scudder. 

On  the  part  and  behalf  of  the  state  of  Pennsylvania, 

Rob1  Morris, 
Daniel  Roberdeau, 
Jon»  Bayard  Smith, 
William  Clingan, 
Joseph  Reed, 

22d  July,  1778. 

On  the  part  and  behalf  of  the  state  of  Delaware, 

Tho.  M'Kean, 

Feb.  12,  1779, 
John  Dickinson, 

May  5,  1779, 
Nicholas  Van  Dyke. 


APPENDIX.  287 

On  the  part  and  behalf  of  the  state  of  Maryland, 

John  Hanson, 

March  1st,  1781, 
Daniel  Carroll, 

March  1st,  1781. 

On  the  part  and  behalf  of  the  state  of  Virginia, 

Richard  Henry  Lee, 
John  Banister, 
Thomas  Adams, 
Jn°  Harvie, 
Francis  Lightfoot  Lee. 

On  the  part  and  behalf  of  the  state  of  North-Carolina, 

John  Penn, 

July  21st,  1778. 
Corns  Harnett, 
Jn°  Williams. 

On  the  part  and  behalf  of  the  state  of  South-Carolina, 

Henry  Laurens, 
William  Henry  Dray  ton, 
Jn°  Matthews, 
Richd  Hutson. 
Thos.  Heyward,  jun. 

On  the  part  and  behalf  of  the  state  of  Georgia, 
•  Jn°  Walton, 

24th  July,  1778, 
Edwd  Telfair, 
Edwd  Langworthy. 


CONSTITUTION 

OF  THE 

UNITED  STATES  OF  AMERICA. 


WE  the  People  of  the  United  States,  in  order  to  form  a  more 
perfect  Union,  establish  Justice,  insure  domestic  Tran- 
quillity, provide  for  the  common  defence,  promote  the 
general  Welfare,  and  secure  the  Blessings  of  Liberty  to 
ourselves  and  our  Posterity,  do  ordain  and  establish  this 
CONSTITUTION  for  the  United  States  of  America. 

ARTICLE  I. 

SECTION  1.  All  legislative  Powers  herein  granted  shall  be 
vested  in  a  Congress  of  the  United  States,  which  shall  con- 
sist of  a  Senate  and  House  of  Representatives. 

SECTION  2.  The  House  of  Representatives  shall  be  com- 
posed of  Members  chosen  every  second  Year  by  the  People  of 
the  several  States,  and  the  Electors  in  each  State  shall  have 
the  Qualifications  requisite  for  Electors  of  the  most  numerous 
Branch  of  the  State  Legislature. 

No  Person  shall  be  a  Representative  who  shall  not  have 
attained  to  the  Age  of  twenty-five  years,  and  been  seven 
Years  a  Citizen  of  the  United  States,  and  who  shall  not, 
when  elected,  be  an  Inhabitant  of  that  State  in  which  he 
shall  be  chosen. 

[Representatives  and  direct  Taxes  shall  be  apportioned 
among  the  several  States  which  may  be  included  within  this 
Union,  according  to  their  respective  Numbers,  which  shall 

288 


APPENDIX.  289 

be  determined  by  adding  to  the  whole  Number  of  free  Per- 
sons, including  those  bound  to  Service  for  a  Term  of  Years, 
and  excluding  Indians  not  taxed,  three  fifths  of  all  other 
Persons.]*  The  actual  Enumeration  shall  be  made  within 
three  Years  after  the  first  Meeting  of  the  Congress  of  the 
United  States,  and  within  every  subsequent  Term  of  ten 
Years,  in  such  Manner  as  they  shall  by  Law  direct.  The 
Number  of  Representatives  shall  not  exceed  one  for  every 
thirty  Thousand,  but  each  State  shall  have  at  Least  one 
Representative;  and  until  such  enumeration  shall  be  made, 
the  State  of  New  Hampshire  shall  be  entitled  to  chuse  three, 
Massachusetts  eight,  Rhode  Island  and  Providence  Planta- 
tions one,  Connecticut  five,  New  York  six,  New.  Jersey  four, 
Pennsylvania  eight,  Delaware  one,  Maryland  six,  Virginia  ten, 
North  Carolina  five,  South  Carolina  five,  and  Georgia  three. 

When  vacancies  happen  in  the  Representation  from  any 
State,  the  Executive  Authority  thereof  shall  issue  Writs  of 
Election  to  fill  such  Vacancies. 

The  House  of  Representatives  shall  chuse  their  Speaker  and 
other  Officers ;  and  shall  have  the  sole  Power  of  Impeachment. 

SECTION  3.  The  Senate  of  the  United  States  shall  be 
composed  of  two  Senators  from  each  State,  chosen  by  the 
Legislature  thereof,  for  six  Years;  and  each  Senator  shall 
have  one  Vote. 

Immediately  after  they  shall  be  assembled  in  Consequence 
of  the  first  Election,  they  shall  be  divided  as  equally  as  may 
be  into  three  Classes.  The  Seats  of  the  Senators  of  the  first 
Class  shall  be  vacated  at  the  Expiration  of  the  second  Year, 
of  the  second  Class  at  the  Expiration  of  the  fourth  Year, 
and  of  the  third  Class  at  the  Expiration  of  the  sixth  Year, 
so  that  one-third  may  be  chosen  every  second  Year ;  and  if 
Vacancies  happen  by  Resignation,  or  otherwise,  during  the 
Recess  of  the  Legislature  of  any  State,  the  Executive  thereof 

*  The  clause  included  in  brackets  was  superseded  by  the  14th  amendment, 
2nd  section. 

13 


290  APPEKDIX. 

may  make  temporary  Appointments  until  the  next  Meeting 
of  the  Legislature,  which  shall  then  fill  such  Vacancies. 

No  Person  shall  be  a  Senator  who  shall  not  have  attained  to 
the  Age  of  thirty  Years,  and  been  nine  Years  a  Citizen  of  the 
United  States,  and  who  shall  not,  when  elected,  be  an  Inhab- 
itant of  that  State  for  which  he  shall  be  chosen. 

The  Vice-President  of  the  United  States  shall  be  President 
of  the  Senate,  but  shall  have  no  Vote,  unless  they  be  equally 
divided. 

The  Senate  shall  chuse  their  other  Officers,  and  also  a 
President  pro  tempore,  in  the  Absence  of  the  Vice-President, 
or  when  he  shall  exercise  the  Office  of  President  of  the 
United  States. 

The  Senate  shall  have  the  sole  Power  to  try  all  Impeach- 
ments. When  sitting  for  that  Purpose,  they  shall  be  on 
Oath  or  Affirmation.  When  the  President  of  the  United 
States  is  tried,  the  Chief  Justice  shall  preside :  And  no  Per- 
son shall  be  convicted  without  the  Concurrence  of  two-thirds 
of  the  Members  present. 

Judgment  in  Cases  of  Impeachment  shall  not  extend  fur- 
ther than  to  removal  from  Office,  and  Disqualification  to  hold 
and  enjoy  any  office  of  honour,  Trust  or  Profit  under  the 
United  States;  but  the  Party  convicted  shall  nevertheless  be 
liable  and  subject  to  Indictment,  Trial,  Judgment  and  Pun- 
ishment, according  to  Law. 

SECTION  4.  The  Times,  Places  and  Manner  of  holding 
Elections  for  Senators  and  Representatives,  shall  be  pre- 
scribed in  each  State  by  the  Legislature  thereof;  but  the 
Congress  may  at  any  time  by  Law  make  or  alter  such  Regu- 
lations, except  as  to  the  places  of  chusing  Senators. 

The  Congress  shall  assemble  at  least  once  in  every  Year, 
and  such  meeting  shall  be  on  the  first  Monday  in  December, 
unless  they  shall  by  Law  appoint  a  different  Day. 

SECTION  5.  Each  House  shall  be  the  Judge  of  the  Elec- 
tions, Returns  and  Qualifications  of  its  own  Members,  and  a 
Majority  of  each  shall  constitute  a  Quorum  to  do  Business ; 


APPENDIX.  291 

but  a  smaller  Number  may  adjourn  from  day  to  day,  and  may 
be  authorized  to  compel  the  Attendance  of  absent  Members, 
in  such  Manner,  and  under  such  Penalties  as  each  House  may 
provide. 

Each  House  may  determine  the  Rules  of  its  Proceedings, 
punish  its  Members  for  disorderly  Behaviour,  and,  with  the 
Concurrence  of  two-thirds,  expel  a  Member. 

Each  House  shall  keep  a  Journal  of  its  Proceedings,  and 
from  time  to  time  publish  the  same,  excepting  such  Parts  as 
may  in  their  Judgment  require  Secrecy,  and  the  Yeas  and 
Nays  of  the  Members  of  either  House  on  any  question  shall, 
at  the  desire  of  one-fifth  of  those  Present,  be  entered  on  the 
Journal. 

Neither  House,  during  the  session  of  Congress,  shall,  with- 
out the  Consent  of  the  other,  adjourn  for  more  than  three 
days,  nor  to  any  other  Place  than  that  in  which  the  two 
Houses  shall  be  sitting. 

SECTION  6.  The  Senators  and  Representatives  shall  receive 
a  Compensation  for  their  Services,  to  be  ascertained  by  Law, 
and  paid  out  of  the  Treasury  of  the  United  States.  They 
shall  in  all  Cases,  except  Treason,  Felony  and  Breach  of  the 
Peace,  be  privileged  from  Arrest  during  their  Attendance  at 
the  Session  of  their  respective  Houses,  and  in  going  to  and 
returning  from  the  same ;  and  for  any  Speech  or  Debate  in 
either  House,  they  shall  not  be  questioned  in  any  other  Place. 

No  Senator  or  Representative  shall,  during  the  Time  for 
which  he  was  elected,  be  appointed  to  any  civil  Office  under 
the  Authority  of  the  United  States,  which  shall  have  been 
created,  or  the  Emoluments  whereof  shall  have  been  encreased 
during  sucli  time ;  and  no  Person  holding  any  Office  under 
the  United  States  shall  be  a  Member  of  either  House  during 
his  Continuance  in  Office. 

SECTION  7.  All  Bills  for  raising  Revenue  shall  originate  in 
the  House  of  Representatives ;  but  the  Senate  may  propose  or 
concur  with  Amendments  as  on  other  Bills. 

Every  Bill  which  shall  have  passed  the  House  of  Repre- 


292  APPENDIX. 

sentatives  and  the  Senate,  shall,  before  it  become  a  Law,  be 
presented  to  the  President  of  the  United  States ;  If  he  approve 
he  shall  sign  it,  but  if  not  he  shall  return  it,  with  his  Objec- 
tions, to  that  House  in  which  it  shall  have  originated,  who 
shall  enter  the  Objections  at  large  on  their  Journal,  and  pro- 
ceed to  reconsider  it.  If  after  such  Reconsideration  two- 
thirds  of  that  House  shall  agree  to  pass  the  Bill,  it  shall  be 
sent,  together  with  the  Objections,  to  the  other  House,  by 
which  it  shall  likewise  be  reconsidered,  and  if  approved  by 
two-thirds  of  that  House,  it  shall  become  a  Law.  But  in  all 
such  Cases  the  Votes  of  both  Houses  shall  be  determined  by 
Yeas  and  Nays,  and  the  Names  of  the  Persons  voting  for  and 
against  the  Bill  shall  be  entered  on  the  Journal  of  each  House 
respectively.  If  any  Bill  shall  not  be  returned  by  the  Presi- 
dent within  ten  Days  (Sundays  excepted)  after  it  shall  have 
been  presented  to  him,  the  Same  shall  be  a  law,  in  like  Man- 
ner as  if  he  had  signed  it,  unless  the  Congress  by  their  Ad- 
journment prevent  its  Return,  in  which  Case  it  shall  not  be  a 
Law. 

Every  Order,  Resolution,  or  Vote  to  which  the  Concurrence 
of  the  Senate  and  House  of  Representatives  may  be  necessary 
(except  on  a  question  of  Adjournment)  shall  be  presented  to 
the  President  of  the  United  States;  and  before  the  Same  shall 
take  Effect,  shall  be  approved  by  him,  or  being  disapproved 
by  him,  shall  be  repassed  by  two-thirds  of  the  Senate  and 
House  of  Representatives,  according  to  the  Rules  and  Limita- 
tions prescribed  in  the  Case  of  a  Bill. 

SECTION  8.     The  Congress  shall  have  Power 

To  lay  and  collect  Taxes,  Duties,  Imposts  and  Excises,  to 
pay  the  Debts  and  provide  for  the  common  Defence  and  gen- 
eral Welfare  of  the  United  States ;  but  all  Duties,  Imposts 
and  Excises  shall  be  uniform  throughout  the  United  States ; 

To  borrow  Money  on  the  credit  of  the  United  States ; 

To  regulate  Commerce  with  foreign  Nations  and  among 
the  several  States,  and  with  the  Indian  tribes ; 

To  establish  an  uniform  Rule  of  Naturalization,  and  uniform 


APPENDIX.  293 

Laws  on  the  subject  of  Bankruptcies  throughout  the  United 
States ; 

To  coin  Money,  regulate  the  Value  thereof,  and  of  foreign 
Coin,  and  fix  the  Standard  of  Weights  and  Measures ; 

To  provide  for  the  Punishment  of  counterfeiting  the  Securi- 
ties and  current  Coin  of  the  United  States ; 

To  establish  Post  Offices  and  post  Roads; 

To  promote  the  progress  of  Science  and  useful  Arts,  by 
securing  for  limited  Times  to  Authors  and  Inventors  the  ex- 
clusive Right  to  their  respective  Writings  and  Discoveries; 

To  constitute  Tribunals  inferior  to  the  supreme  Court ; 

To  define  and  punish  Piracies  and  Felonies  committed  on 
the  high  Seas,  and  Offences  against  the  Law  of  Nations ; 

To  declare  War,  grant  Letters  of  Marque  and  Reprisal,  and 
make  Rules  concerning  Captures  on  Land  and  Water; 

To  raise  and  support  Armies,  but  no  Appropriation  of 
Money  to  that  Use  shall  be  for  a  longer  Term  than  two  Years ; 

To  provide  and  maintain  a  Navy ; 

To  make  Rules  for  the  Government  and  Regulation  of  the 
land  and  naval  Forces ; 

To  provide  for  calling  forth  the  Militia  to  execute  the  Laws 
of  the  Union,  suppress  Insurrections  and  repel  Invasions; 

To  provide  for  organizing,  arming,  and  disciplining  the 
Militia,  and  for  governing  such  Part  of  them  as  may  be  em- 
ployed in  the  Service  of  the  United  States,  reserving  to  the 
States  respectively,  the  Appointment  of  the  Officers,  and  the 
Authority  of  training  the  Militia  according  to  the  Discipline 
prescribed  by  Congress ; 

To  exercise  exclusive  Legislation  in  all  Cases  whatsoever, 
over  such  District  (not  exceeding  ten  Miles  square)  as  may, 
by  Cession  of  particular  States,  and  the  Acceptance  of  Con- 
gress, become  the  Seat  of  the  Government  of  the  United 
States,  and  to  exercise  like  Authority  over  all  Places  pur- 
chased by  the  consent  of  the  Legislature  of  the  State  in  which 
the  Same  shall  be,  for  the  Erection  of  Forts,  Magazines,  Arse- 
nals, Dock-Yards,  and  other  needful  Buildings ; — And 


294  APPENDIX. 

To  make  all  Laws  which  shall  bo  necessary  and  proper  for 
carrying  into  Execution  the  foregoing  Powers,  and  all  other 
Powers  Bested  by  this  Constitution  in  the  Government  of  the 
United  States,  or  in  any  Department  or  Officer  thereof. 

SECTION  9.  The  Migration  or  Importation  of  such  Persons 
as  any  of  the  States  now  existing  shall  think  proper  to  admit, 
shall  not  be  prohibited  by  the  .Congress  prior  to  the  Year  one 
thousand  eight  hundred  and  eight,  but  a  Tax  or  Duty  may  be 
imposed  on  such  Importation,  not  exceeding  ten  dollars  for 
eacli  Person. 

The  Privilege  of  the  Writ  of  Habeas  Corpus  shall  not  be 
suspended,  unless  when  in  cases  of  Rebellion  or  Invasion  the 
public  Safety  may  require  it. 

No  bill  of  Attainder  or  ex  post  facto  Law  shall  be  passed. 

No  Capitation,  or  other  direct,  Tax  shall  be  laid,  unless  in 
Proportion  to  the  Census  or  Enumeration  herein  before 
directed  to  be  taken. 

No  Tax  or  Duty  shall  be  laid  on  Articles  exported  from  any 
State. 

No  Preference  shall  be  given  by  any  Regulation  of  Com- 
merce or  Revenue  to  the  Ports  of  one  State  over  those  of  any 
another  :  nor  shall  Vessels  bound  to,  or  from,  one  State,  be 
obliged  to  enter,  clear,  or  pay  Duties  in  another. 

No  Money  shall  be  drawn  from  the  Treasury,  but  in  Conse- 
quence of  Appropriations  made  by  Law  ;  and  a  regular  State- 
ment and  Account  of  the  Receipts  and  Expenditures  of  all  pub- 
lic Money  shall  be  published  from  time  to  time. 

No  Title  of  Nobility  shall  be  granted  by  the  United  States  : 
And  no  Person  holding  any  Office  of  Profit  or  Trust  under 
them,  shall,  without  the  Consent  of  the  Congress,  accept  of 
any  present,  Emolument,  Office,  or  Title,  of  any  kind  what- 
ever, from  any  King,  Prince,  or  foreign  State. 

SECTION.  10.  No  State  shall  enter  into  any  Treaty,  Alliance, 
or  Confederation  ;  grant  Letters  of  Marque  and  Reprisal  ; 
coin  Money  ;  emit  Bills  of  Credit;  make  any  Tiling  but  gold 
and  silver  Coin  a  Tender  in  Payment  of  Debts ;  pass  any  Bill 


APPENDIX.  295 

of  Attainder,  ex  post  facto  Law,  or  Law  impairing  the  Obli- 
gation of  Contracts,  or  grant  any  Title  of  Nobility. 

No  State  shall,  without  the  consent  of  the  Congress,  lay  any 
Imposts  or  Duties  on  Imports  or  Exports,  except  what  may  be 
absolutely  necessary  for  executing  it's  inspection  Laws  :  and 
the  net  Produce  of  all  Duties  and  Imposts,  laid  by  any  State 
on  Imports  or  Exports,  shall  be  for  the  Use  of  the  Treasury  of 
the  United  States  ;  and  all  such  Laws  shall  be  subject  to  the 
Revision  and  Controul  of  the  Congress. 

No  State  shall,  without  the  Consent  of  Congress,  lay  any 
Duty  of  Tonnage,  keep  Troops,  or  Ships  of  War  in  time  of 
Peace,  enter  into  any  Agreement  or  Compact  with  another 
State,  or  with  a  foreign  Power,  or  engage  in  War,  unless 
actually  invaded,  or  in  such  imminent  Danger  as  will  not 
admit  of  Delay. 

ARTICLE  II. 

SECTION  1.  The  executive  Power  shall  be  vested  in  a  Presi- 
dent of  the  United  States  of  America.  He  shall  hold  his 
office  during  the  Term  of  four  Years,  and,  together  with  the 
Vice  President,  chosen  for  the  same  Term,  be  elected,  as  fol- 
lows 

Each  State  shall  appoint,  in  such  Manner  as  the  Legislature 
thereof  may  direct,  a  Number  of  Electors,  equal  to  the  whole 
Number  of  Senators  and  Representatives  to  which  the  State 
may  be  entitled  in  the  Congress  :  but  no  Senator  or  Represen- 
tative, or  Person  holding  an  Office  of  Trust  or  Profit  under 
the  United  States,  shall  be  appointed  an  Elector. 

[*  The  Electors  shall  meet  in  their  respective  State?,  and  vote  by  Ballot  for 
two  Persons,  of  whom  one  at  least  shall  not  be  an  Inhabitant  of  the  same 
State  with  themselves.  And  they  shall  make  a  List  of  all  the  Persons  voted 
for,  and  of  the  Number  of  Votes  for  each  ;  which  list  they  shall  sign  and  cer- 
tify, and  transmit  sealed  to  the  Seat  of  the  Government  of  the  United  States, 
directed  to  the  President  of  the  Senate.  The  President  of  the  Senate  shall,  in 
the  Presence  of  the  Senate  and  House  of  Representatives,  open  all  the  Certifi- 

*  This  clause  within  brackets  has  been  superseded  and  annulled  by  the  12th 
amendment. 


296  APPENDIX. 

cates,  and  the  Votes  shall  then  be  counted.  The  Person  having  the  greatest 
number  of  Votes  shall  be  the  President,  if  such  Number  be  a  Majority  of  the 
whole  Number  of  Electors  appointed ;  and  if  there  be  more  than  one  who 
have  such  Majority  and  have  an  equal  Number  of  Votes,  then  the  House  of 
Representatives  shall  immediately  chuse  by  Ballot  one  of  them  for  President ; 
and  if  no  Person  have  a  Majority,  then  from  the  five  highest  on  the  List  the 
said  House  shall  in  like  manner  chuse  the  President.  But  in  chusing  the 
President,  the  Votes  shall  be  taken  by  States,  the  Representation  from  each 
State  having  one  Vote  ;  A  Quorum  for  this  Purpose  shall  consist  of  a  Member 
or  Members  from  two-thirds  of  the  States,  and  a  Majority  of  all  the  States 
shall  be  necessary  to  a  Choice.  In  every  Case,  after  the  Choice  of  the  Presi- 
dent, the  Person  having  the  greatest  Number  of  Votes  of  the  Electors  shall  be 
the  Vice  President.  But  if  there  should  remain  two  or  more  who  have  equal 
Votes,  the  Senate  shall  chuse  from  them  by  Ballot  the  Vice  President.] 

The  Congress  may  determine  the  Time  of  chusiug  the  Elec- 
tors, and  the  Day  on  which  they  shall  give  their  Votes;  which 
Day  shall  be  the  same  throughout  the  United  States. 

No  Person  except  a  natural  born  Citizen,  or  a  Citizen  of  the 
United  States,  at  the  time  of  the  Adoption  of  this  Constitu- 
tion, shall  be  eligible  to  the  Office  of  President;  neither  shall 
any  Person  be  eligible  to  that  Office  who  shall  not  have 
attained  to  the  Age  of  thirty  five  Years,  and  been  fourteen 
Years  a  Resident  within  the  United  States. 

In  Case  of  the  Removal  of  the  President  from  Office,  or  of  his 
Death,  Resignation,  or  Inability  to  discharge  the  Powers  aiid 
Duties  of  the  said  Office,  the  same  shall  devolve  on  the  Vice 
President,  and  the  Congress  may  by  Law  provide  for  the  Case 
of  Removal,  Death,  Resignation,  or  Inability,  both  of  the 
President  and  Vice  President,  declaring  what  Officer  shall 
then  act  as  President,  and  such  Officer  shall  act  accordingly, 
until  the  Disability  be  removed,  or  a  President  shall  be 
elected. 

The  President  shall,  at  stated  Times,  receive  for  his  ser- 
vices, a  Compensation,  which  shall  neither  be  increased  nor 
diminished  during  the  Period  for  which  he  shall  have  been 
elected,  and  he  shall  not  receive  within  that  Period  any 
other  Emolument  from  the  United  States,  or  any  of  them. 

Before  he  enter  on  the  Execution  of  his  Office,  he  shall 
take  the  following  Oath  or  Affirmation : — 


APPENDIX.  297 

"  I  do  solemnly  swear  (or  affirm)  that  I  will  faithfully  exe- 
"  cute  the  Office  of  President  of  the  United  States,  and  will 
"  to  the  best  of  my  Ability,  preserve,  protect  and  defend  the 
"  Constitution  of  the  United  States." 

SECTION  2.  The  President  shall  be  Commander  in  Chief 
of  the  Army  and  Navy  of  the  United  States,  and  of  the 
Militia  of  the  several  States,  when  called  into  the  actual  Ser- 
vice of  the  United  States;  he  may  require  the  Opinion,  in 
writing,  of  the  principal  Officer  in  each  of  the  executive  De- 
partments, upon  any  Subject  relating  to  the  Duties  of  their 
respective  Offices,  and  he  shall  have  Power  to  grant  Re- 
prieves and  Pardons  for  Offences  against  the  United  States, 
except  in  Cases  of  Impeachment. 

He  shall  have  Power,  by  and  with  the  Advice  and  Consent 
of  the  Senate,  to  make  Treaties,  provided  two  thirds  of  the 
Senators  present  concur;  and  he  shall  nominate,  and  by  and 
with  the  Advice  and  Consent  of  the  Senate,  shall  appoint 
Ambassadors,  other  public  Ministers  and  Consuls,  Judges  of 
the  supreme  Court,  and  all  other  Officers  of  the  United 
States,  whose  Appointments  are  not  herein  otherwise  pro- 
vided for,  and  which  shall  be  established  by  Law :  but  the 
Congress  may  by  Law  vest  the  Appointment  of  such  inferior 
Officers,  as  they  think  proper,  in  the  President  alone,  in  the 
Courts  of  Law,  or  in  the  Heads  of  Departments. 

The  President  shall  have  Power  to  fill  up  all  Vacancies 
that  may  happen  during  the  Recess  of  the  Senate,  by  grant- 
ing Commissions  which  shall  expire  at  the  End  of  their  next 
Session. 

SECTION  3.  He  shall  from  time  to  time  give  to  the  Con- 
gress Information  of  the  State  of  the  Union,  and  recommend 
to  their  Consideration  such  Measures  as  he  shall  judge  neces- 
sary and  expedient;  he  may,  on  extraordinary  Occasions, 
convene  both  Houses,  or  either  of  them,  and  in  Case  of  Dis- 
agreement between  them,  with  respect  to  the  Time  of  Ad- 
journment, he  may  adjourn  them  to  such  Time  as  he  shall 
think  proper ;  he  shall  receive  Ambassadors  and  other  public 
13* 


298  APPENDIX. 

Ministers ;  he  shall  take  Care  that  the  Laws  be  faithfully  ex- 
ecuted, and  shall  Commission  all  the  Officers  of  the  United 
States. 

SECTION  4.  The  President,  Vice  President  and  all  civil 
Officers  of  the  United  States,  shall  be  removed  from  Office  on 
Impeachment  for,  and  Conviction  of,  Treason,  Bribery,  or 
other  high  Crimes  and  Misdemeanors. 

ARTICLE  m. 

SECTION  1.  The  judicial  Power  of  the  United  States,  shall 
be  vested  in  one  supreme  Court,  and  in  such  inferior  Courts 
as  the  Congress  may  from  time  to  time  ordain  and  establish. 
The  Judges,  both  of  the  supreme  and  inferior  Courts,  shall 
hold  their  Offices  during  good  Behavior,  and  shall,  at  stated 
Times,  receive  for  their  Services,  a  Compensation,  which 
shall  not  be  diminished  during  their  Continuance  in  Office. 

SECTION  2.  The  judicial  Power  shall  extend  to  all  Cases, 
in  Law  and  Equity,  arising  under  this  Constitution,  the 
Laws  of  the  United  States,  and  Treaties  made,  or  which 
shall  be  made,  under  their  Authority ; — to  all  Cases  affecting 
Ambassadors,  other  public  Ministers,  and  Consuls; — to  all 
Cases  of  admiralty  and  maritime  Jurisdiction; — to  Contro- 
versies to  which  the  United  States  shall  be  a  Party ; — to  Con- 
troversies between  two  or  more  States ; — between  a  State  and 
Citizens  of  another  State; — between  Citizens  of  different 
States ; — between  Citizens  of  the  same  State  claiming  Lands 
under  Grants  of  different  States,  and  between  a  State,  or  the 
Citizens  thereof,  and  foreign  States,  Citizens  or  Subjects. 

In  all  Cases  affecting  Ambassadors,  other  public  Ministers 
and  Consuls,  and  those  in  which  a  State  shall  be  Party, 
the  supreme  Court  shall  have  original  Jurisdiction.  In  all 
the  other  Cases  before  mentioned,  the  supreme  Court  shall 
have  appellate  Jurisdiction,  both  as  to  Law  and  Fact,  with 
such  Exceptions,  and  under  such  Regulations  as  the  Con- 
gress shall  make. 


APPENDIX.  299 

The  Trial  of  all  Crimes,  except  in  Cases  of  Impeachment, 
shall  be  by  Jury,  and  such  Trial  shall  be  held  in  the  State 
where  the  said  Crimes  shall  have  been  committed ;  but  when 
not  committed  within  any  State,  the  Trial  shall  be  at  such 
Place  or  Places  as  the  Congress  may  by  Law  have  directed. 

SECTION  3.  Treason  against  the  United  States  shall  con- 
sist only  in  levying  War  against  them,  or  in  adhering  to 
their  Enemies,  giving  them  Aid  and  Comfort.  No  Person 
shall  be  convicted  of  Treason  unless  on  the  Testimony  of  two 
Witnesses  to  the  same  overt  Act,  or  on  Confession  in  open 
Court. 

The  Congress  shall  have  Power  to  declare  the  Punishment 
of  Treason,  but  no  Attainder  of  Treason  shall  work  Corrup- 
tion of  Blood,  or  Forfeiture  except  during  the  Life  of  the 
Person  attainted. 

AKTICLE  IV. 

SECTION  1.  Full  Faith  and  Credit  shall  be  given  in  each 
State  to  the  public  Acts,  Records,  and  judicial  Proceedings 
of  every  other  State.  And  the  Congress  may  by  general 
Laws  prescribe  the  Manner  in  which  such  Acts,  Records  and 
Proceedings  shall  be  proved,  and  the  Effect  thereof. 

SECTION  2.  The  Citizens  of  each  State  shall  be  entitled  to 
all  Privileges  and  Immunities  of  Citizens  in  the  several 
States. 

A  Person  charged  in  any  State  with  Treason,  Felony,  or 
other  Crime,  who  shall  flee  from  Justice,  and  be  found  in  an- 
other State,  shall  on  Demand  of  the  executive  Authority  of 
the  State  from  which  he  fled,  be  delivered  up,  to  be  removed 
to  the  State  having  Jurisdiction  of  the  Crime. 

No  Person  held  to  Service  or  Labour  in  one  State,  under  the 
Laws  thereof,  escaping  into  another,  shall,  in  Consequence  of 
any  Law  or  Regulation  therein,  be  discharged  from  such 
Service  or  Labour,  i>ut  shall  be  delivered  up  on  Claim  of  the 
Party  to  whom  such  Service  or  Labour  may  be  due. 


300  APPENDIX. 

SECTION  3.  New  States  may  be  admitted  by  the  Congress 
into  this  Union ;  but  no  new  State  shall  be  formed  or  erected 
within  the  Jurisdiction  of  any  other  State;  nor  any  State 
be  formed  by  the  Junction  of  two  or  more  States,  or  Parts  of 
States,  without  the  Consent  of  the  Legislatures  of  the  States 
concerned  as  well  as  of  the  Congress. 

The  Congress  shall  have  Power  to  dispose  of  and  make  all 
needful  Rules  and  Regulations  respecting  the  Territory  or 
other  Property  belonging  to  the  United  States ;  and  nothing 
in  this  Constitution  shall  be  so  construed  as  to  Prejudice  any 
Claims  of  the  United  States,  or  of  any  particular  State. 

SECTION  4.  The  United  States  shall  guarantee  to  every 
State  in  this  Union  a  Republican  Form  of  Government,  and 
shall  protect  each  of  them  against  Invasion,  and  on  Applica- 
tion of  the  Legislature,  or  of  the  Executive  (when  the  Legis- 
lature cannot  be  convened)  against  domestic  Violence. 

ARTICLE  V. 

The  Congress,  whenever  two  thirds  of  both  Houses  shall 
deem  it  necessary,  shall  propose  Amendments  to  this  Consti- 
tution, or,  on  the  Application  of  the  Legislatures  of  two  thirds 
of  the  several  States,  shall  call  a  Convention  for  proposing 
Amendments,  which,  in  either  Case,  shall  be  valid  to  all  In- 
tents and  Purposes,  as  Part  of  this  Constitution,  when  ratified 
by  the  Legislatures  of  three  fourths  of  the  several  States,  or 
by  Conventions  in  three  fourths  thereof,  as  the  one  or  the 
other  Mode  of  Ratification  maybe  proposed  by  the  Congress; 
Provided  that  no  Amendment  which  may  be  made  prior  to 
the  Year  one  thousand  eight  hundred  and  eight  shall  in  any 
Manner  affect  the  first  and  fourth  Clauses  in  the  Ninth  Section 
of  the  first  Article,  and  that  no  State,  without  its  Consent, 
shall  be  deprived  of  its  equal  Suffrage  in  the  Senate. 

ARTICLE  VI. 

All  Debts  contracted  and  Engagements  entered  into,  before 
the  Adoption  of  this  Constitution,  shall  be  as  valid  against 


APPENDIX.  301 

the  United  States  under  this  Constitution,  as  under  the  Con- 
federation. 

This  Constitution,  and  the  Laws  of  the  United  States  which 
shall  be  made  in  Pursuance  thereof;  and  all  Treaties  made,  or 
which  shall  be  made,  under  the  authority  of  the  United  States, 
shall  be  the  supreme  Law  of  the  Land;  and  the  Judges  in 
every  State  shall  be  bound  thereby,  any  Thing  in  the  Consti- 
tution or  Laws  of  any  State  to  the  Contrary  notwithstanding. 

The  Senators  and  Representatives  before  mentioned,  and 
the  Members  of  the  several  State  Legislatures,  and  all  execu- 
tive and  judicial  Officers,  both  of  the  United  States  and  of  the 
several  States,  shall  be  bound  by  Oath  or  Affirmation,  to  sup- 
port this  Constitution;  but  no  religious  Test  shall  ever  be 
required  as  a  Qualification  to  any  Office  or  public  Trust  under 
the  United  States. 

ARTICLE  VH. 

The  Ratification  of  the  Conventions  of  nine  States,  shall  be 
sufficient  for  the  Establishment  of  this  Constitution  between 
the  States  so  ratifying  the  Same. 

DONE  in  Convention  by  the  Unanimous  Consent  of  the  States 
present  the  Seventeenth  Day  of  September  in  the  Year  of 
our  Lord  one  thousand  seven  hundred  and  Eighty  seven 
and  of  the  Independence  of  the  United  States  of  America 
the  Twelfth  In  Witness  whereof  We  have  hereunto 
subscribed  our  names, 

GEO  WASHINGTON— 
Presidt  and  deputy  from.  Virginia. 


302 


APPENDIX. 


NEW  HAMPSHIRE. 
JOHN  LANGDON,  NICHOLAS  GILMAN. 

MASSACHUSETTS. 
NATHANIEL  GOEHAM,  RUFUS  KING. 

CONNECTICUT. 
WM.  SAML.  JOHNSON,  ROGER  SHERMAN. 


ALEXANDER  HAMILTON. 


WIL:  LIVINGSTON, 
WM.  PATERSON, 

B.  FRANKLIN, 
ROBT.  MORRIS, 
THO:  FITZSIMONS, 
JAMES  WILSON, 

GEO:  READ, 
JOHN  DICKINSON, 
JACO:  BROOM. 

JAMES  M'HENRT, 
DANL  CARROLL. 

JOHN  BLAIR, 


NEW  YORK. 

NEW  JERSEY. 

DAVID  BREARLET, 
JONA.  DAYTON. 

PENNSYLVANIA. 

THOMAS  MIFFLIN, 
GEO:  CLY.MER, 
JARED  INGERSOLL, 
Gouv:  MORRIS. 

DELAWARE. 

GUNNING  BEDFORD,  Jun'r, 
RICHARD  BASSETT, 

MARYLAND. 

DAN:  OF  ST.  THOS.  JENIFER, 

VIRGINIA. 

JAMES  MADISON,  Jr., 

NORTH  CAROLINA. 

RICH'D  DOBBS  SPAIGHT, 


WM.  BLOUNT, 
Hu.  WILLIAMSON. 

SOUTH  CAROLINA. 

J.  RUTLEDGE,  CHARLES  COTESWORTH  PINCKNEY 

CHARLES  PINCKNEY,  PIERCE  BUTLER. 

GEORGIA. 
WILLIAM  FEW,  ABR.  BALDWIN. 


Attest: 


WILLIAM  JACKSON,  Secretary. 


ARTICLES 

IN  ADDITION   TO   AND   AMENDMENT  OP 

THE  CONSTITUTION 

OP  THE 

UNITED  STATES  OF  AMEEICA. 

Proposed  by  Congress,  and  ratified  Try  the  Legislatures  of  the 
several  States,  pursuant  to  the  fftli  article  of  the  original 
Constitution. 

(ARTICLE   I.) 

Congress  shall  make  no  law  respecting  an  establishment  of 
religion,  or  prohibiting  the  free  exercise  thereof;  or  abridg- 
ing the  freedom  of  speech,  or  of  the  press,  or  the  right  of  the 
people  peaceably  to  assemble,  and  to  petition  the  Government 
for  a  redress  of  grievances. 

(ARTICLE  II.) 

A  well  regulated  Militia,  being  necessary  to  the  seuritcy  of 
a  free  State,  the  right  of  the  people  to  keep  and  bear  Arms, 
shall  not  be  infringed. 

(ARTICLE  HI.) 

No  Soldier  shall,  in  time  of  peace  be  quartered  in  any 
house,  without  the  consent  of  the  Owner,  nor  in  time  of  war, 
but  in  a  manner  to  be  prescribed  by  law. 

(ARTICLE  IV.) 

The  right  of  the  people  to  be  secure  in  their  persons, 
houses,  papers,  and  effects,  against  unreasonable  searches  and 
seizures,  shall  not  be  violated,  and  no  Warrants  shall  issue, 

303 


304  APPENDIX. 

but  upon  probable  cause,  supported  by  Oath  or  affirmation, 
and  particularly  describing  the  place  to  be  searched,  and  the 
persons  or  things  to  be  seized. 

(ARTICLE  V.) 

No  person  shall  be  held  to  answer  for  a  capital,  or  other- 
wise infamous  crime,  unless  on  a  presentment  or  indictment 
of  a  Grand  Jury,  except  in  cases  arising  in  the  land  or  naval 
forces,  or  in  the  Militia,  when  in  actual  service  in  time  of 
War  or  public  danger;  nor  shall  any  person  be  subject  for 
the  same  offence  to  be  twice  put  in  jeopardy  of  life  or  limb ; 
nor  shall  be  compelled  in  any  Criminal  Case  to  be  a  witness 
against  himself,  nor  be  deprived  of  life,  liberty,  or  property, 
without  due  process  of  law ;  nor  shall  private  property  be 
taken  for  public  use,  without  just  compensation. 

(ARTICLE   VI.) 

In  all  criminal  prosecutions,  the  accused  shall  enjoy  the 
right  to  a  speedy  and  public  trial,  by  an  impartial  jury  of  the 
State  and  district  wherein  the  crime  shall  have  been  com- 
mitted, which  district  shall  have  been  previously  ascertained 
by  law,  and  to  be  informed  of  the  nature  and  cause  of  the 
accusation ;  to  be  confronted  with  the  witnesses  against  him ; 
to  have  Compulsory  process  for  obtaining  witnesses  in  his 
favour,  and  to  have  the  Assistance  of  Counsel  for  his  de- 
fence. 

(ARTICLE  VII.) 

In  Suits  at  common  law,  where  the  value  in  controversy 
shall  exceed  twenty  dollars,  the  right  of  trial  by  jury  shall 
be  preserved,  and  no  fact  tried  by  a  jury  shall  be  otherwise 
re-examined  in  any  Court  of  the  United  States,  than  accord- 
ing to  the  rules  of  the  common  law. 

(ARTICLE  Vin.) 

Excessive  bail  shall  not  be  required,  nor  excessive  fines 
imposed,  nor  cruel  and  unusual  punishments  inflicted. 


APPENDIX.  305 

(ARTICLE  IX.) 

The  enumeration  in  the  Constitution,  of  certain  rights, 
eh  all  not  be  construed  to  deny  or  disparage  others  retained 
by  the  people. 

(ARTICLE  X.) 

The  powers  not  delegated  to  the  United  States  by  the  Con- 
stitution, nor  prohibited  by  it  to  the  States,  are  reserved  to 
the  States  respectively,  or  to  the  people. 

ARTICLE  XL 

The  Judicial  power  of  the  United  States  shall  not  be  con- 
strued to  extend  to  any  suit  in  law  or  equity,  commenced  or 
prosecuted  against  one  of  the  United  States  by  Citizens  of 
another  State,  or  by  Citizens  or  Subjects  of  any  Foreign 
State. 

*  ARTICLE  XH. 

The  Electors  shall  meet  in  their  respective  states,  and  vote 
by  ballot  for  President  and  Vice-President,  one  of  whom,  at 
least,  shall  not  be  an  inhabitant  of  the  same  state  with  them- 
selves ;  they  shall  name  in  their  ballots  the  person  voted  for 
as  President,  and  in  distinct  ballots  the  person  voted  for  as 
Vice-President,  and  they  shall  make  distinct  lists  of  all  per- 
sons voted  for  as  President,  and  of  all  persons  voted  for  as 
Vice-President,  and  of  the  number  of  votes  for  each,  which 
lists  they  shall  sign  and  certify,  and  transmit  sealed  to  the 
seat  of  the  government  of  the  United  States,  directed  to  the 
President  of  the  Senate ; — The  President  of  the  Senate  shall, 
in  presence  of  the  Senate  and  House  of  Representatives,  open 
all  the  certificates  and  the  votes  shall  then  be  counted ; — The 
person  having  the  greatest  number  of  votes  for  President, 
shall  be  the  President,  if  such  number  be  a  majority  of  .the 
whole  number  of  Electors  appointed;  and  if  no  person  have 

*  In  substitution  of  part  of  §  1,  Article  2,  of  Constitution,  as  originally 
adopted. 


306  APPENDIX. 

such  majority,  then  from  the  persons  having  the  highest 
numbers  not  exceeding  three  on  the  list  of  those  voted  for  as 
President,  the  House  of  Representatives  shall  choose  imme- 
diately, by  ballot,  the  President.  But  in  choosing  the  Presi- 
dent, the  votes  shall  be  taken  by  states,  the  representation 
from  each  state  having  one  vote ;  a  quorum  for  this  purpose 
shall  consist  of  a  member  or  members  from  two-thirds  of  the 
states,  and  a  majority  of  all  the  states  shall  be  necessary  to  a 
choice.  And  if  the  House  of  Representatives  shall  not 
choose  a  President  whenever  the  right  of  choice  shall  de- 
volve upon  them,  before  the  fourth  day  of  March  next  follow- 
ing, then  the  Vice-President  shall  act  as  President,  as  in  the 
case  of  the  death  or  other  constitutional  disability  of  the 
President.  The  person  having  the  greatest  number  of  votes 
as  Vice-President,  shall  be  the  Vice-President,  if  such  num- 
ber be  a  majority  of  the  whole  number  of  Electors  appointed, 
and  if  no  person  have  a  majority,  then  from  the  two  highest 
numbers  on  the  list,  the  Senate  shall  choose  the  Vice-Presi- 
dent ;  a  quorum  for  the  purpose  shall  consist  of  two-thirds  of 
the  whole  number  of  Senators,  and  a  majority  of  the  whole 
number  shall  be  necessary  to  a  choice.  But  no  person  con- 
stitutionally ineligible  to  the  office  of  President  shall  be 
eligible  to  that  of  Vice-President  of  the  United  States. 

ARTICLE  XIII. 

SECTION  1.  Neither  slavery  nor  involuntary  servitude,  ex- 
cept as  a  punishment  for  crime,  whereof  the  party  shall  have 
been  duly  convicted,  shall  exist  within  the  United  States,  or 
any  place  subject  to  their  jurisdiction. 

SECTION  2.  Congress  shall  have  power  to  enforce  this  arti- 
cle by  appropriate  legislation. 

ARTICLE  XIV. 

SECTION  1.  All  persons  born  or  naturalized  in  the  United 
States  and  subject  to  the  jurisdiction  thereof,  are  citizens  of 
the  United  States,  and  of  the  State  wherein  they  reside.  No 


APPENDIX.  307 

State  shall  make  or  enforce  any  law  which  shall  abridge  the 
privileges  or  immunities  of  citizens  of  the  United  States ;  nor 
shall  any  State  deprive  any  person  of  life,  liberty  or  property 
without  due  process  of  law,  nor  deny  to  any  person  within  its 
jurisdiction  the  equal  protection  of  the  laws. 

SECTION  3.  Representatives  shall  be  apportioned  among  the 
several  States  according  to  their  respective  numbers,  count- 
ing the  whole  number  of  persons  in  each  State,  excluding 
Indians  not  taxed;  but  when  the  right  to  vote  at  any  election 
for  the  choice  of  electors  for  President  and  Vice-President  of 
the  United  States,  Representatives  in  Congress,  the  executive 
and  judicial  officers  of  a  State  or  the  members  of  the  Legisla- 
ture thereof,  is  denied  to  any  of  the  male  inhabitants  of  such 
State,  being  twenty-one  years  of  age  and  citizens  of  the 
United  States,  or  in  any  way  abridged,  except  for  participa- 
tion in  rebellion  or  other  crimes,  the  basis  of  representation 
therein  shall  be  reduced  in  the  proportion  which  the  number 
of  such  male  citizens  shall  bear  to  the  whole  number  of  male 
citizens  twenty-one  years  of  age  in  such  State. 

SECTION  3.  No  person  shall  be  a  Senator  or  Representa- 
tive in  Congress  or  elector  of  President  and  Vice-President, 
or  hold  any  office  civil  or  military,  under  the  United  States 
or  under  any  State  who,  having  previously  taken  an  oath 
as  a  Member  of  Congress,  or  as  an  officer  of  the  United  States, 
or  as  a  member  of  any  State  Legislature,  or  as  an  executive  or 
judicial  officer  of  any  State,  to  support  the  Constitution  of 
the  United  States,  shall  have  engaged  in  insurrection  or 
rebellion  against  the  same,  or  given  aid  or  comfort  to  the 
enemies  thereof.  But  Congress  may,  by  a  vote  of  two-thirds 
of  each  house,  remove  such  disability. 

SECTION  4.  The  validity  of  the  public  debt  of  the  United 
States  authorized  by  law,  including  debts  incurred  for  pay- 
ment of  pensions  and  bounties  for  services  in  suppressing  in- 
surrection or  rebellion,  shall  not  be  questioned.  But  neither 
the  United  States  nor  any  State  shall  assume  or  pay  any  debt 
or  obligation  incurred  in  the  aid  of  insurrection  or  rebellion 


308  APPENDIX. 

against  the  United  States,  or  any  loss  or  emancipation  of  any 
slave,  but  such  debts,  obligations  and  claims  shall  be  held 
illegal  and  void. 

SECTION  5.  The  Congress  shall  have  the  power  to  enforce, 
by  appropriate  legislation,  the  provisions  of  this  article. 

ARTICLE  XV. 

SECTION  1.  The  right  of  citizens  of  the  United  States  to 
vote,  shall  not  be  denied  or  abridged  by  the  United  States, 
or  by  any  State,  on  account  of  race,  color  or  previous  con- 
dition of  servitude. 

SECTION  2.  Congress  shall  have  power  to  enforce  this  arti- 
cle by  appropriate  legislation. 


INDEX. 

COMPILED  BY  L.  E.  JONES. 


Abolitionist  party,  origin,  176;  acces- 
sion of  strength,  180. 

Adams,  J.,  his  casting  vote  gives  Prest. 
power  of  removal,  151;  adm.  of,  157- 
159;  his  breach  with  Hamilton,  100. 

Adams,  J.  Q.,  adm.  of,  166-168. 

Adjournment  of  Congress,  36  ;  by  the 
Prest,  74. 

Administration,  of  Washington,  147- 
157;  Adams,  157-159;  Jefferson,  159- 
161;  Madison,  161-163;  Monroe,  163- 
166;  J.  Q.  Adams,  166-168;  Jacksori, 
168-175;  Van  Buren,  175-176;  Harri- 
son and  Tyler,  177-179;  Polk,  179- 
181;  Taylor  and  Fillmore,  182-186; 
Pierce,  186-190;  Buchanan,  190-196; 
Lincoln,  190-200;  Johnson,  200-205; 
Grant,  205-216;  Hayes,  216-220. 

Admiralty  powers  under  Arts,  of  Con- 
fed.,  10;  power  of  Congress,  45;  juris- 
diction of  Sup.  Ct..  102-103,  106;  of 
U.  S.  courts,  107-108,  126.  See  also 
Prizes. 

Admission  of  States,  17,  19;  submis- 
sion of  their  constitutions  to  Con- 
gress, 251. 

Adoption  of  Const.,  opposition  to,  14, 
14S,  149. 

Advisory  Boards  for  legislatures,  264- 
265. 

Age  of  Congressmen,  28  ;  of  Senators, 
.33;  of  Prest.,  68. 

Agricultural  statistics,  88.  See  also 
Granger. 

Agriculture,  Dept.  of,  84;  its  duties, 
94-95. 

Alabama  secedes,  194. 

Alabama  settlement  with  England,  207. 

Alaska,  purchase  of,  115. 

Aldermen,  defects  of  system,  272 ; 
should  be  made  responsible,  274. 

Alien  laws;48-49, 141,  158-159. 

Aliens,  power  of  Prest.  to  protect,  83; 
suits  in  which  they  are  parties,  103, 
109-110. 

Alliance.    See  Treaty. 

Ambassadors,  Continental  Congress  to 
send  and  to  receive,  10;  under  Const, 
appointed  by  Prest.,  73;  suits  affect- 
ing, 102,  103,  126. 


Amendments  to  Const..,  64,  66, 103, 110, 
117-124,  160,  202,  205;  how  made,  17- 
18;  their  provisions,  18-23;  Sec.  of 
State  to  give  notice,  85;  they  form 
a  bill  of  rights,  135-144;  those  pro- 
posed by  Madison,  151-152;  defeated, 
167;  text  of  the  15  adopted,  303-308. 

Amendments  to  State  constitutions, 
provisions  for,  253. 

American  party.    (SeeKnow-Nothings. 

American  register  of  ships,  237. 

Amnesty  power  taken  from  the  Prest., 
203. 

Anti-Federalists,  148-149. 

Anti-Masonicparty,  172. 

Anti  slavery.  See  Abolitionist;  Slavery. 

Appellate  jurisdiction  of  Sup.  Ct.,  103, 
126-132;  of  U.  S.  courts,  121-122;  of 
Circuit  courts,  133. 

Appendix,  275-308. 

Appointing  power  of  Prest.,  73-74,  76- 
78,  82-84,  89,  90,  92,  93,  94,  126,  151: 
share  of  Senate  in,  34;  how  used 
since  adm.  of  Jackson,  227;  its 
evils,  227-228;  efforts  at  reform,  228- 
231.  See  also  Civil  service;  Removal: 
Spoils;  Tenure-of-offlce. 

Appointment  of  State  officers,  251-252, 
254-257;  of  judges,  254-256. 

Apportionment  of  Congressmen,  28-31, 
123. 

Appraisal  of  imports,  Treas.  Dept.  to 
report  to  Congress  rules  for,  87. 

Appropriations,  bills  for,  to  originate 
in  House  of  Rep.,  36-37;  money  to 
be  paid  only  by,  51 ;  Treas.  Dept.  to 
keep  account  of,  85. 

Arkansas,  hesitates  about  secession, 
194;  secedes,  197. 

Armies,  power  of  Congress  to  raise, 
45;  appropriations  for,  limited  to 
two  years,  45,  46;  power  of  States  to 
maintain,  limited,  56.  See  also  Mili- 
tia. 

Arms,  risht  of  people  to  bear,  19, 140- 
141;  does  not  apply  to  concealed 
weapons,  117-118. 

Army,  power  of  Continental  Congress 
over,  11 ;  of  Congress  over,  46 ;  of 
Prest.  over,  203;  U.  S.  does  not  need 
309 


310 


IKDEX. 


a  standing,  223.  See  also  Militia; 
Volunteer;  War  Dept. 

Arsenals,  jurisdiction  of  Congress  over, 
47. 

Arthur,  C.  A.,  accession  to  presidency, 
80-81,220. 

Articles  of  Confederation,  adoption, 
9;  powers,  10;  defects,  11-1:5,  27, 
96;  differences  from  Const.,  143-144; 
their  weakness,  146;  their  text, 
275-287. 

Ashburton  treaty,  178. 

Assassination  of  Lincoln,  200 ;  of  Gar- 
field,  220. 

Assembling,  people's  right  of,  19,  117, 
140. 

Assessments,  attempts  to  limit  ratio, 
272-273.  Ste  also  Political  assess- 
ments. 

Attainder,  bill  of,  forbidden,  47,  50-51, 
52,  111. 

Attorney-General,  84;  his  duties,  90- 
92. 

Bail,  excessive,  prohibited  by  Const, 
amend.,  21,  122,  142. 

Ballot,  Prest.  and  Vice-Prest.  to  be 
chosen  by,  66;  its  introduction  in 
voting,  254. 

Bank  of  U.S.,  disagreement  as  to  its 
incorporation,  155;  reorganization 
in  1811,  1G-3;  the  failure  to  re 
charter  it,  170-171 ;  Jackson  removes 
U.  S.  deposits  from,  172.  See  also 
Fiscal. 

Bank  notes.    See  Paper  money. 

Banking  corporations,  influence  upon 
State  legislation,  257. 

Bankruptcy,  power  of  Natl.  Govt. 
over,  16;  of  Congress,  over,  42,  writs 
of  injunction  in,  132. 

Banks,  statistics  of,  88.  See  also  Na- 
tional banks;  State  banks. 

Battle  of  New  Orleans,  102-103. 

Bell,  J.,  nominated  as  Prest.  by  Const. 
Union  party,  193. 

Biennial  sessions  of  State  legislatures, 
264-266. 

Bill  of  attainder.    See  Attainder. 

Bill  of  lights  in  amends,  to  Const., 
135-144. 

Bills  of  credit,  States  prohibited  from 
issuing,  52. 

Bi  metallism,  242-244. 

Blair,  F.  P.,  Jr.,  nominated  as  Vice- 
Prest.,  205. 

Bland  silver  bill,  242. 

Blockades,  power  of  Prest.  to  insti- 
tute, &3. 

Bonds  of  U.  S.  not  subject  to  taxation 
by  States,  39;  nail,  banks  required 
to  invest  capital  in,  198.  See  also 
Debt. 

Bosses,  political,  219,  265. 


Boundaries  between  the  States,  10. 

Bounty  lands,  94, 115. 

Breckenridge,  J.  C.,  elected  Vice- 
Prest.,  190;  nominated  as  Prest.,  193. 

Bribery,  impeachment  for,  75;  provis- 
ions in  State  constitutions  against, 
253. 

British  orders  in  council,  101. 

Brooklyn,  frequent  change  of  public 
improvement  laws,  273. 

Brooks,  P.  S.,  assault  upon  Sumner, 
189. 

Brown,  B.  G.,  nominated  as  Vice- 
Prest.,  208. 

Buchanan,  J.,  adm.  of.  190-196. 

Bureau.  .feCensus;  Education;  Freed- 
men's;  Mint;  Statistics. 

Burr,  A.,  contest  with  Jefferson  for 
presidency,  159-160;  duel  with  Ham- 
ilton, 160. 

Butler  nominated  as  Vice-Prest.,  181. 

Butler,  B.  F.,  declares  slaves  to  be 
contrabands  of  war,  197. 

Cabinet,  83-84;  that  of  Tyler  resigns, 
177-178;  propriety  of  giving  mem- 
bers seats  in  Congress,  247-249. 

Calhoun,  J.  C.,  elected  Vice-Prest., 
107,  108;  advocacy  of  nullification, 
170. 

California,  cession  to  U.  S.,  180;  ad- 
mission as  a  State,  183-184;  its  ac- 
tion on  Chinese  question,  240. 

Canal  commissioners  of  States,  253. 

Capital  of  U.  S.,  its  location,  152,  153, 

res. 

Capitation  tax  proportional  to  popula- 
tion, 51. 

Captures.    See  Prizes. 

Carpet-baggers,  206. 

Carrying  trade,  efforts  to  restore,  237- 
238. 

Cuss,  L.,  nominated  for  presidency, 
181. 

Caucus,  origin,  159  ;  its  evils,  232,  265 ; 
how  to  remedy  them,  235. 

Censorship  of  the  press,  137. 

Census,  provision  for  taking,  28-31. 

Census  Bureau,  93-94. 

Centralization  of  power,  156,  158,  226. 

Charter  governments  of  the  colonies,  3. 

Chatters,  colonial,  2,  3. 

Chase,  S.  P.,  43. 

Chief  Justice  presides  in  impeachment 
of  Prest.,  82. 

Chinese  question,  239-241. 

Circuit  courts  established  by  Confess, 
44;  appeals  to  Sup.  Ct.  from,  126, 127; 
writ*  of  -tie  exeat  by  judges  of,  132. 

Citizens  of  the  different  States  to  be 
on  an  equality.  18;  to  be  entitled  to 
privileges  of  other  States,  57-58,  60, 
113-114;  suits  in  which  they  are  par- 
ties, 103,  104,  105, 106, 109, 110;  juris- 


INDEX. 


311 


diction  of  Snp.  Ct.  in  cases  between, 
103, 103;  entitled  to  equal  protection 
of  States,  122-123;  their  rights  pro- 
tected more  by  States  than  by  null, 
govt.,  250;  their  rights  of  voting  at 
all  elections,  251-252. 

Citizenship  of  Congressmen,28;  of  Sen- 
ators, .33;  defined,  113-114;  freedmen 
admitted  to,  202;  qualification!  for, 
254.  See  also  Naturalization. 

City.    See  Municipal. 

Civil  judgments  in  one  State  binding 
in  others,  59. 

Civil  law,  its  administration  chiefly  in 
control  of  States,  250. 

Civil  rights,  22,  122-123,  124;  passage 
of  bill,  202. 

Civil  service,  evils  of,  iv-v,  viii;  re- 
forms in,  77-78,  228-231,  235,  265. 
See  also  Appointing;  Office-holders; 
Removals;  Spoils. 

Civil  suits,  right  of  jury  in,  secured  by 
Const,  amend. ,21. 

Civil  War,  19(5-200;  settlement  of  is- 
sues raised  by  it,  iv-vi;  Const, 
amends,  caused  by,  22;  settled  ques- 
tion of  State  rights,  20;  a  pretext  for 
protective  duties,  235-236. 

Claims  of  and  against  U.  S.  to  be  ad- 
justed by  Treasury  Dept.,  85;  inva- 
lidity of  Southern,  22,  123-124.  Ste 
also  Examiner;  Court  of  Claims. 

Clay,  H.,  165. 

Clearance  of  vessels,  51. 

Clerk  of  House  of  Representatives 
makes  up  roll  of  members,  32. 

Clinton,  G.,  elected  Vice-Prest.,  161. 

Coast  Survey,  88,  151. 

Cobden-Clievallier  treaty,  238. 

Coercion  of  Judicial  and  Exec,  Depts. 
by  Congress,  35;  of  States,  194,  196. 

Coercive  authority  lacking  in  Conti- 
nental Congress,  11-12. 

Coffee,  duty  on,  lowered,  238. 

Coin  of  U.  S.  under  charge  of  Treas. 
Dept.,  87. 

Coinage,  power  of,  under  Arts,  of 
Con  fed.,  11;  under  Const,,  42-43; 
States  prohibited  from,  52;  of  silver, 
242. 

Colfax,  S.,  elected  Vice-Prest.,  205. 

Colonial  Congress,  declaration  of  1765, 
4-5.  Ste  also  Continental  Congress. 

Colonies,  their  forms  of  government, 
1-5.  See  <it$o  State  legislatures. 

Color,  discriminations  against,  prohib- 
ited by  Const,  amend.,  22. 

Colorado,  organization  into  a  territory, 
196;  admission  as  a  State,  211;  min- 
ing regions  of,  217. 

Commander-in-chief,  45-46,  73. 

Commerce,  inter-state,  13,  51,  224; 
power  of  Congress  to  regulate,  40- 
42;  statistics  of,  88;  embargo  act 


for  protection  of,  161.  See  also  Ex- 
ports; Free  trade;  Protective. 

Commercial  crisis  of  1837,  172,  176;  of 
1873,  210. 

Commissions  granted  by  Prest.,  74. 

Common  law,  recognition  of,  in  colo- 
nies, 2-3. 

Compensation  of,  presidential  electors, 
71;  for  private  property  seized,  119. 

Competitive  examinations,  229. 

Compromises  in  Const.,  23-24. 

Concealed  weapons,  118. 

Confederate  •govt.,  organization,  195. 
Ste  also  Southern  Slates. 

Confederates,  disabilities,  22,  123;  in- 
validity of  claims  for  losses,  22,  123- 
124;  iron-clad  oath,  63-(j4.  See  also 
Southern  States. 

Confirmation  by  the  Senate,  34-35,  73- 
74,  80,  89,  90,  92,  93,  94. 

Congress,  27-64;  its  appointment 
power,  74;  depts.  to  report  to,  85, 
87-88;  Attorney-Gen,  and  Postmas- 
ter-Gen, to  report  to,  92;  limitations 
on,  96-98,  101-102;  power  over  juris- 
diction of  U.  S.  courts,  104,  106-107, 
108;  its  right  of  eminent,  domain, 
119-120;  claims  before,  133-135;  the 
first  Congress,  149-153.  Ste  also  Co- 
lonial; Continental;  House  of  Rep.; 
Legislation;  Senate. 

Congressional  districts,  30-31. 

Congressmen,  their  qualifications,  28; 
number,  29-31;  disqualification  for 
otherofllces  during  term,  36;  oath  to 
support  Const.,  63-64;  cannot  be 
prest.  electors,  65;  number  in  Madi- 
son's adm.,  163.  » 

Conklin,  R.,  his  resignation,  77. 

Connecticut,  form  of  colonial  govt.,  3. 

Conspiracy  not  treaahn,  112.  Ste  also 
Sedition. 

Constitution  of  U.  S.,  1-26;  the  su- 
preme law,  61-62;  opposition  to  its 
adoption,  14,  148-149;  its  text,  288- 
308.  Ste  alto  Amendments;  Con- 
structions ;  Limited. 

Constitutional  Convention,  14. 

Constitutional  law,  its  scope,  15.  See 
also  Laws. 

Constitutional  Union  party.  ^Know- 
Nothings. 

Constitutionality  of  Acts  of  Congress, 
why  determined  by  judges,  97-102. 

Constitutions  of  the  States,  1-8;  their 
changes  and  developments,  250-274. 

Constructions  put  upon  Const.,  cause 
of  parties,  173-175.  See  also  Loose  ; 
Strict. 

Consuls,  appointed  by  Prest. ,74;  juris- 
diction of  Sup.  Ct.  in  cases  affecting, 
102.  103:  parlies  to  actions,  126. 

Continental  Congress,  5-7 ;  its  pow- 
ere,  10-11 ;  its  inability  to  enforce 


312 


INDEX. 


laws,  12,  27;  a  tribunal  of  last  re- 
sort, 96. 

Continental  paper  money,  amount  and 
redemption  of,  154. 

Contraband  of  war,  slaves  declared  to 
be,  197. 

Contracts,  States  prohibited  from  im- 
pairing, 52-56;  those  of  Treas.  Dept. 
to  be  reported  to  Congress,  87 ;  for 
postal  service,  92,  93. 

Convening  Congress  by  Prest.,  74. 

Conventions  for  nominating  Prest., 
their  beginning,  69-70?  for  amend. 
State  consts.,  253. 

Copyright,  power  of  Congress  over, 
43-44. 

Corporations,  modification  of  State 
grants  to,  53-56  ;  have  not  the  privi- 
leges of  citizens,  58  ;  empowered  to 
exercise  right  of  eminent  domain, 
119 ;  grants  of  land  to,  246-247 ;  in- 
fluence upon  State  legislation,  257 ; 
minority  representation  in,  262.  See 
also  Municipal. 

Corruption,  of  carpet-baggers,  207; 
provisions  in  State  consts.  against, 
253 ;  in  city  govts.,  267. 

Cotton,  illegality  of  export  duty  on,  51; 
claims  for  seizure  of,  133-134. 

Counsel  in  criminal  prosecutions,  120. 

Counterfeiting,  power  of  Congress  to 
punish,  43. 

Counting  electoral  votes,  66,  71,  213- 
214. 

County  organizations,  established  by 
State  constitutions,  253  ;  debts  in  aid 
of  railways,  260,  261. 

Court  of  Claims,  appeals  to  Sup.  Ct. 
from,  127;  its  jurisdiction,  133-135. 

Courtesy  of  the  Senate.  76-78. 

Courts  of  last  resort,  their  judgments 
final,  121.  See  also  Circuit;  District; 
Judicial;  State;  Supreme. 

Courts  martial,  120-121,  140. 

Credit,  bills  of,  States  prohibited  from 
issuing,  52. 

Credit  of  U.  S.  under  Continental 
Congress,  12-13.  ISee  also  Debt. 

dime,  no  increase  caused  by  Civil 
War,  v. 

Crimes  committed  in  U.  S.  bldgs. 
cognizable  in  U.  S.  courts.  47. 

Criminal  law,  how  guarded  by  Const, 
amend.,  20-21;  judgments  in  one 
State  not  binding  in  others,  59-60  ; 
jury  trials  obligatory,  110-112;  in- 
dictments essential,  118 ;  limitations 
on  prosecutions,  120-121;  its  adm. 
chiefly  in  control  of  States,  250.  See 
also  Attainder;  Ex_poxt  facto. 

Criminals  to  be  delivered  up  by  the 
States,  18,  50,  58.  See  also  Requi- 
sition. 

Crittenden  Compromise,  194. 


Crown  lands,  ownership  after  forma- 
tion of  Union,  9-10. 

Cuba,  pro-slavery  desire  for  its  ac- 
quisition, 191. 

Cumulative  voting,  263. 

Currency,  statistics  of,  88  ;  Controller 
of,  89.  See  also  Legal  tender;  Paper 
money. 

Current  questions,  222-249. 

Custom  duties.  Treasury  Dept.  in 
charge  of  collection,  86.  See  also 
Imports ;  Protective. 

Custom-IIonses,  number  of  employes 
and  expenses  to  be  reported  to 
Congress,  88. 

Customs,  Commissioners  of,  89. 

Dakotah,  organization  into  a  territory, 
196. 

Dallas,  G.  M.,  elected  Vice-Prest.,  179. 

Dartmouth  College  vs.  Woodward,  53. 

Davis,  J.,  electee  Prest.  of  Confeder- 
ate govt.,  195. 

Death  of  Prest.  and  Vicc-Prest,  79^81. 

Debt  of  U.  S.,  payment  and  refunding 
of,  v;  Continental  Congress  with- 
out power  to  pay,  11;  practical  re- 
pudiation under  Continental  Con- 
gress, 13 ;  its  validity  secured  by 
Const,  amend.,  22,  123;  power  of 
Congress  to  contract,  40;  in  charge 
of  Treas.  Dept.,  86;  its  considera- 
tion in  first  Congress,  152,  153-155 ; 
its  amount  at  close  of  War  of  1812. 
162;  its  decrease  during  adm.  or 
Monroe,  166;  extinguished  during 
adm.  of  Jackson,  173;  increased  by 
Mexican  War,  182;  its  payment  in 
coin,  209-210;  increased  by  Civil 
War,  227;  its  rapid  decrease,  241, 
246.  See  also  Bonds. 

Debts,  States  cannot  obstruct  collec- 
tion of,  54;  States  prohibited  from 
making  them  payable  in  anything 
but  gold  and  silver,  52;  contracted 
in  aid  of  railways,  260-261. 

Debts  of  cities,  260-261,267-271;  neces- 
sity for  their  limitation,  273-274. 

Debts  of  States,  validity  of  those 
contracted  before  adopting  Const., 
61;  their  amount  and  their  assump- 
tion by  natl.  govt.,  154-155;  con- 
trolled by  their  consts.,  253. 

Debts  of  Southern  States,  their  invalid- 
ity, 23,  123 ;  those  created  since 
Civil  War,  206-207. 

Decentralization  of  power  in  States, 
253. 

Decisions.  See  Judgments;  Supreme 
Court. 

Declaration  of  Independence,  6. 

Delaware,  form  of  colonial  govt.,  3; 
withholds  ratification  to  Articles  of 
Confed.,  9;  secedes,  197. 


INDEX. 


313 


Democratic-Republican  party,  155. 

Democratic  party,  155,  172;  platform 
in  1848,  181;  in  1852,  ia5-186;  its 
division  in  1860, 192-193;  adopts  Lib- 
eral Repub.  candidates,  208;  nomi- 
nates Tilden  as  Prest.,211;  change 
of  attitude  in  1S76,  214-216;  nomi- 
nates Hancock  as  Prest.,  217;  plat- 
form in  1880,  218;  its  change  of 
front  loses  it  the  election,  219  ;  its 
principles,  220 ;  its  advocacy  of 
civil  service  reform,  230  ;  free  tra- 
ders' relation  to,  238-239.  See 
also  Republican  (Old);  Republican- 
Democratic. 

Demonetization  of  silver,  241-242. 

Departments.  See  Agriculture;  In- 
terior; Justice;  Navy;  Post-office; 
State;  Treasury;  War. 

Deposits  of  U.  S.,  withdrawn  from  U. 
S.  Bank,  172;  placed  in  U.  S.  treas- 
ury, 176. 

Diplomatic  affairs  in  charge  of  State 
Dent.,  84-85. 

Disabilities  of  rebels,  22,  123. 

Disbursements.    See  Expenditures. 

Discriminating  legislation,  113-114. 

Discrimination  in  railway  rates,  225. 

Disputes  between  the  States,  settle- 
ment of,  under  Arts,  of  Coufed.,  10. 

Disqualification  of  Congressmen  and 
Senators  for  other  offices  during 
term,  36. 

District  attorneys,  90. 

District  courts,  44, 126, 127,  132. 

District  of  Columbia,  jurisdiction  of 
Congress  over,  47;  appeals  from  its 
Sup.  Ct.  to  U.  S.  Sup.  Ct.,  127. 

Districts  in  which  trials  shall  be  held, 
120, 132. 

Dock-yards,  jurisdiction  of  Congress 
over,  47. 

Documents,  public,  94. 

Dorlge,  Free  Soil  party  nominate,  as 
Vice-Prest.  in  1848,  182. 

Domestic  violence,  U.  S.  to  protect 
States  from,  59.  See  also  Insurrec- 
tions. 

Door-keeper  of  House  of  Rep.,  32. 

Douglass,  S.  A.  nominated  as  Prest. 
by  Northern  Democrats,  193. 

Dred  Scott  decision;  190-191. 

Duties.  See  Customs;  Free  trade; 
Imports;  Internal  revenue;  Pro- 
tective; Revenue. 

Education,  grants  of  lands  to  States 
for,  115;  of  colored  children,  124. 

Education.  Bureau  of,  94. 

Election  of  Congressmen,  time  and 
mode,  31-52;  House  of  Rep.  sole 
judge  of,  36. 

Election  of  judges,  254-256. 

Election  of  Prest.,  65-72;  change  in 

14 


mode,  160;  defeat  of  further  attempt 
to  change  mode,  167;  Jackson  recom- 
mends change  in  mod<j,  169-170. 

Election  of  Senators,  33;  Senate  sole 
judge  of,  36. 

Elections.    See  Ballol ;  Suffrage. 

Electoral  College,  65-72. 

Electoral  Commission  of  1876,  72,  214- 
216. 

Electors  of  Congressmen,  their  quali- 
fications, 28  ;  penalty  for  abridging 
their  rights,  29. 

Electors  of  Prest.,  65,  72. 

Emancipation  proclamation,  197. 

Embargo  act,  Ifil. 

Emigration,  tax  of  N.  Y.  Hlegal,  56-57; 
a  cause  of  prosperity,  237. 

Eminent  domain,  55,  119-120. 

Employes.    See  Office-holders;  State. 

Engineers.    See  State. 

England,  critical  relations  with,  during 
Washington's  adm.,  157;  France  de- 
sires U.  S.  to  assist  in  war  against, 
158;  relations  with,  161,  163;  orders 
in  council,  161;  War  of  1812, 162-163; 
settlement  of  Oregon  question,  181; 
how  its  system  of  parties  differs 
fromU.  S.,  231-232;  benefits  of  her 
free  trade  policy,  238.  • 

Errors.    See  Appeals. 

Europe,  U.  S.  opposition  to  its  inter- 
ference with  affairs  of  N.  Am.  con- 
tinent, 165-166. 

Everett,  E.,  nominated  as  Vice-Prest. 
by  Const.  Union  party,  193. 

Examiner  of  Claims,  90. 

Executive  Dept.,  65-95;  its  weakness 
under  Articles  of  Confed.,  12,  27; 
coercion  of  Congress  over,  35.  See 
also  National  government. 

Executive  officers,  oath  to  support 
Const.,  63-64.  See  also  Cabinet; 
President;  State. 

Exemplification  acts,  57. 

Expenditures,  Treasury  Dept.  to  keep 
account  of,  85-86;  to  be  published 
quarterly,  88-89. 

Exports,  taxes  on,  prohibited,  51 ; 
Treas.  Dept.  to  prepare  statistics  of, 
86 ;  at  close  of  Jackson's  adm.,  173; 
increase  during  Hayes'  adm.,  217. 

Ex  mst  facto  laws  prohibited,  50-51, 52, 
111. 

Expulsion  of  Congressmen  and  Sena- 
tors, 36. 

Extradition.    See  Requisition. 

Federal  party,  148-149;  its  advocacy  of 
central  power,  156;  its  success,  157; 
causes  of  unpopularity,  158,  15!); 
weakened,  160;  further  weakened, 
161,  162;  its  disappearance,  174. 

Felonies  on  the  high  seas,  45. 

Fillmore,  M.,  adm.  of,  182-186. 


314 


INDEX. 


Finances  under  Continental  Congress, 
12-13.  See  also  Debt. 

Fines,  excessive,  prohibited  by  Const, 
amend.,  21,  122,  142. 

Fiscal  Bank  of  U.  S.,  bill  to  incorpo- 
rate, vetoed  by  Tyler,  177-178.  See 
also  Bank. 

Fitzsimmons,  T.,  author  of  first  tariff 
list,  149. 

Florida,  purchase  of,  115,  116,  164; 
admission  as  a  State,  178-179;  se- 
cedes, 194:  its  electoral  vote  in  1876, 
212,  214,  216. 

Food,  the  U.  S.  the  largest  contribu- 
tor of,  iv. 

Foreign  affairs  in  charge  of  State 
Dept.,  84-85. 

Foreign  gifts,  etc.,  to  office-holders 
prohibited,  52. 

Foreign  intervention  not  feared  by  U. 

Sooo 
.,    ^ -~. 

Foreign  postal  service,  92,  93. 

Foreigners.    See  Aliens. 

Forfeitures,  power  of  Prest.  to  remit, 
83. 

Fort  Sumter,  surrender  of,  196. 

Forts,  jurisdiction  of  Congress  over, 
47. 

France,  influence  in  State  constitu- 
tions, 8;  purchase  of  land  from,  115, 
116;  relations  with  daring  Washing- 
ton's adm.,  157;  desires  United 
States  to  assist  in  war  against  Eng- 
land, 158;  embargo  act,  164;  free 
trade  policy,  238. 

Franchises  created  by  States  cannot 
be  taxed  by  Congress,  40;  power  of 
States  to  modify,  53-56. 

Free  Soil  party,  origin,  181-182;    its 

Protest  against  fugitive  slave  law, 
36. 

Free  trade,  foreign  and  inter-State, 
vii;  advocated  in  Democratic  plat- 
form of  1880,  218;  position  aban- 
doned, 219;  advocated  by  the  Sonth, 
236;  loss  of  confidence  in  Democratic 
party,  238-239.  See  also  Commerce; 
Protective. 

Freedmen,  their  electoral  rights 
guarded  by  Const,  amend.,  29;  edu- 
cation of  their  children,  124;  exten- 
sion of  suffrage  to,  200^-203,  205; 
legislation  to  secure  their  rights. 
206. 

Freedmen's  Bureau,  201,  202,  203. 

Freedom  of  the  press  secured  by 
Const,  amend.,  19,  117,  136-140;  se- 
cured by  State  consts.,  251. 

Freedom  of  religion,  19,  117.  135-136. 

Freedom  of  speech  secured  by  Const, 
amend.,  19,  117,  136-137;  secured  by 
State  consts.,  251. 

Fremont,  J.  C.,  proposal  to  free 
slaves,  197. 


,       . 

General  government.    See  National. 
General  laws,  as  opposed  to  special, 


Fugitive  slave  bill,  58-59,  184-186  ;  re- 

pealed, 199. 
Fugitives  from  justice  to  be  delivered 

up  by  the  States,  18,  50,  58. 

Gadsden  purchase,  180. 

Garfield,  J.  A.,  assassination,  80-81, 

220:  elected  Prest,  217;  desire  for 

civil  service  reform,  229. 
gove 
law 

258-260,  264. 
Georgia,  form  of  colonial  govt.,  3  ;  op- 

position to  protective  duties,  168  ; 

secedes,  194. 
Germany,  effects  of  its  decentraliza- 

tion of  power,  226  ;  demonetization 

of  silver,  241. 
Ghent,  Treaty  of,  162. 
Gifts  to    office-holders  from  foreign 

states  prohibited,  52;    to  religious 

institutions  261-262. 
Gold,  anti-slavery  effect  of   its   dis- 

covery in  California,  183;  its  value 

in  Civil  War,  209. 
Government  of  the  Continental  Con- 

gress, 6-7.    See  also  National. 
Governments  of  the  colonies,  1-5:  of 

the  Southern  States,  201,   203-204, 

206-207. 
Governors,  colonial,  powers  of,  2,  3  ; 

of  States,  253.  254-256. 
Grand  jury,  indictments  by,  118. 
Granger  laws,  53-54,  224. 
Grant,  U.  S.,  199,  203  ;  appointed  Sec. 

of  War,  204  ;  adm.  of,  205-216  ;  effort* 

at  civil  service  reform,  228. 
Grants  to  religious  institutions,  261- 

262. 
Greeley,  H.,  heads  Repub.  opposition 

to  Grant,  207  ;  nominated  as  Prest., 

208. 

Greenback  party,  210,  217,  243,  244. 
Greenbacks.     See    Currency  ;    Paper 

money. 

Gresham  law,  242. 

Grievances,  redress  by  petitioning,  19. 
Guadalupe  Hidalgo  treaty,  115. 

Habeas  cot-pus,  133  ;  restrictions  on  its 
suspension,  50  ;  power  of  Prest.  to 
suspend,  83  ;  not  to  be  used  in  favor 
of  fugitive  slaves,  184-185  ;  secured 
by  State  consts.,  251. 

Hale,  J.  P.,  nominated  as  Prest.  by 
Free  Soil  party,  186. 

Hamilton,  A.,  135,  156-157;  on  Elector- 
al College,  68-69;  on  U.  S.  judiciary, 
96-100;  on  authority  of  Sup.  Ct.  over 
State  laws,  104-106;  his  plan  of  treat- 
ing debt,  153-155;  on  incorporation 
of  Bank  of  U.  S.,  155;  breach  with 
Adams,  160;  death,  160. 

Hancock,  W.  S.,  nominated  as  Prest., 


INDEX. 


315 


217;  loses  election  by  free-trade  let- 
ter, 219. 

Harrison,  W.  H.,  dies  shortly  after  his 
election  to  the  presidency,  177. 

Hartford  Convention,  162,  174. 

Hayes,  R.  B.,  contest  for  presidency, 
71-72,  211-216;  adm.  of,  216-220;  ef- 
forts at  civil  service  reform,  229. 

Head-money.    See  Emigration. 

Holy  Alliance,  Jlonroe  doctrine  op- 
posed to  design  of,  166. 

Homestead  law,  115-116. 

House  of  Representatives,  28-33;  elec- 
toral votes  to  be  counted  in  presence 
of,  66  ;  when  it  elects  Prest.,  66-67  ; 
power  of  impeaching,  82, 101;  elects 
Prest.,  159,  166-167;  conflict  with 
Senate  iu  counting  votes  in  1876, 
213-214  ;  question  of  giving  Cabinet 
seats  in,  247-249. 

Illinois,  minority   representation   in, 

262-263. 
Immoral    publications   in  the  mails, 

138^139. 

Impairment.    See  Contracts. 
Impeachment,  73,  74-75,  81-82, 100-101, 

205. 
Implied  powers  of  Congress,  48;    of 

Prest.,  83-84. 

Importation  of  slaves,  49-50. 
Imports,  Treas.  Dept.  to  prepare  statis- 
tics of,  86;    at  close  of  Jackson's 

adm.,  173. 
Impost  duties  of  States  limited,  56.  See 

also  Protective. 
Impressment  of  Am.  seamen  by  the 

English,  161. 

Improvements.    See  Internal. 
Inability  of  Prest.  and  Vice-Prest.,  79- 

81.      ' 
Indians,  94;  neither  citizens  nor  aliens, 

109;   reservations  for,  115;  treaties 

with,  153. 

Indictments  in  criminal  cases,  118. 
Inflation  of  currency,  209-210. 
Injunction,   U.  S.  courts   can    issue 

writs  of,  132. 

Insolvency.    See  Bankruptcy. 
Insurance  corporations,  influence  upon 

State  legislation,  257. 
Insurrections,  power  of  Congress  to 

suppress,  45;  natl.  govt.  to  protect 

States  from,  59. 
Interior  Dept ,  84,  93-94. 
Internal  improvements,  power  of  Con- 
gress to  make;  48;  Whig  party  on, 

174-175,  176;  division  of  parties  on, 

in  1848, 181, 182. 
Internal    revenue,  collected    in   each 

State,    88;    Commissioners    of.    89; 

bonds  of  collectors,  91;  its  abolition 

in  favor  of  protection,  238.    See  also 

Solicitor. 


International  law,  power  of  Congress 
to  punish  offenses  against,  45. 

Interpretation  of  the  Const.,  right  of 
States  to,  24-25;  of  U.  S.  Sup.  Ct.  to, 
26,  61-62;  why  given  to  judges,  97- 
102;  influence  of  parties  on,  145-146. 

Inter-state  commerce,  vii,  40-42,  224. 

Inter-state  communication,  223. 

Invasions,  power  of  Congress  to  repel, 
45;  natl.  govt.  to  protect  States 
from,  59. 

Ironclad  oath,  63-64. 

Irredeemable  currency,  209-210. 

Jackson,  A.,  battle  of  New  Orleans, 
162-163;  adm.  of,  168-173;  mode  of 
appointments,  227. 

Jealousy  of  the  States,  23-24,  69, 147. 

Jefferson,  T.,  opposition  to  Const,  met 
by  amends.,  152;  on  incorporation  of 
Bank  of  U.  S.,  155;  advocates  State 
rights,  156;  retires  from  Washing- 
ton's cabinet,  156-157;  elected  Vice- 
Pi-est.,  157;  adm.  of,  159-161. 

Johnson,  A.,  coercion  and  impeach- 
ment by  Congress,  35,  82;  adm.  of, 
200-205. 

Johnson,  H.  V.,  nominated  £g  Vice- 
Prest.  by  northern  Democrats,  193. 

Johnston,  J.  E.,  surrender  of,  199. 

Judges  of  U.  S.  courts  appointed  by 
Prest.,  74.  See  also  State  judges. 

Judgments  of  one  State  binding  in 
others,  59;  of  courts  of  last  resort 
final,  121-122.  See  also  Supreme 
Court. 

Judicial  power  of  U.  S.,  21,  35,  44,  96- 
144,  149.  See  also  Courts;  State 
judges. 

Judicial  proceedings,  States  to  give 
credit  to  those  of  one  another,  18, 
57-59. 

Judicial  officers,  oath  to  support 
Const.,  63-64. 

Judiciary  act,  106, 126-133. 

Julian,  G.  W.,  nominated  as  Vice- 
Prest.  by  Free  Soil  party,  186. 

Jurisdiction  of  Congress  over  land 
purchased  by  govt.,  46-47;  of  TJ.  S. 
courts,  102-100.  See  also  Appellate; 
Original. 

Jury  trials,  in  colonies,  5;  secured  by 
Const,  amend..  20-21;  obligatory 
only  in  criminal  cases,  110-112;  de- 
fined, 122;  secured  by  State  consts., 
251.  See  also  Grand  jury. 

Justice,  Dept.  of,  84,  89-92. 

Kansas,  its  formation  into  a  territory, 
186-187;  its  admission  as  a  State,  187- 
189,  191-192,  196. 

Kentucky,  nullification  of  Alien  and 
Sedition  laws,  49;  hesitates  about 


316 


INDEX. 


secession,  194;  remains  in  the  Union, 

197. 

King,  W.  R.,  elected  Vice-Prest.,  186. 
Know-Nothings,  188,  193. 
Knox,  H. ,  favors  incorporation  of  Bank 

of  U.  8.,  155. 

Land  Office,  94. 

Lands,  speculation  in,  causes  panic  of 
1837.  175-176.  See  also  Bounty  lands; 
Public  lands. 

Lane,  J.,  nominated  as  Vice-Prest.  by 
Southern  Democrats,  193. 

Law  Dept.  See  Attorney-General ;  Jus- 
tice, Dept.  of. 

Law  of  nations.  See  International  law. 

Laws,  Continental  Congress  without 
powers  to  enforce,  11-12;  for  carry- 
ing Const,  into  effect,  48;  under  the 
Const,  the  supreme  law,  61-62;  Prest. 
entrusted  with  execution  of,  74;  to 
be  promulgated  by  Sec.  of  State, 
85;  Sup.  Ct.  to  determine  their  con- 
stitutionality, 125.  See  also  Constitu- 
tional; Legislation;  MuncipaJ. 

Leavenworth  Constitution,  187. 

Lecompton  Constitution,  191. 

Lee,  R.  E.,  surrender  of,  199. 

Legal  tender,  States  prohibited  from 
making  anything  but  gold  and  silver 
a  legal  tender,  52.  See  also  Paper 
money ;  Silver. 

Legal  tender  act,  35;  its  constitution- 
ality, 143;  its  passage  a  war  measure, 
198. 

Legislation  in  U.  S.,  its  defective 
methods,  viii.  See  also  Congress; 
General  laws;  Laws;  Local  Dills; 
Special  legislation. 

Legislative  Dept.  of  U.  S.,  27-64.  See 
also  Congress. 

Legislatures.   See  State  legislatures. 

Letters  of  marque  and  reprisal,  power 
of  Congress  to  grant,  45;  States  pro- 
hibited^from  granting,  52. 

Libel,  111-112,  136-137, 138. 

Liberal  Republican  party,  208. 

Liberty.    See  Personal  liberty. 

Liberty  party.    See  Abolitionist. 

License  laws,  57-58. 

Lieutenant- Governors  of  States,  252. 

Lighting  streets,  269. 

Limited  constitution  defined,  96-97. 
See  also  Strict. 

Lincoln,  A.,  forged  proclamation,  139- 
140;  elected  Prest.,  193;  adm.  of, 
196-200;  assassination  of,  200. 

Loan  Assoc.  vx.  Topeka,  38. 

Lobby,  its  influence  upon  State  legis- 
lation, 257. 

Local  bills  prohibited  in  many  States, 
258-960.  See  also  Special  legisla- 
tion 

Local  govt.  in  States,  253. 


Loose  construction! sts  of  Const.,  174, 

21&-216. 
Louisiana,  purchase  of,  115, 116,  161; 

secedes,  194;  electoral  vote  in  1876, 

212,  213,  214. 

Madison,  J.,  quoted,  149-150;  proposes 
Con«t.  amends..  151-152;  on  incor- 
poration of  Bank  of  U.  S.,  155;  lead- 
er of  Republican  party,  157;  adm. 
of,  161-163. 

Mail.    See  Post. 

Maine,  admission  of,  164. 

Mandamus,  power  of  Sup.  Ct.  to  issue 
writ  of,  126. 

Manufactures,  statistics  of,  88;  their 
influence  in  forming  Whig  party, 
175. 

Maritime.    See  Admiralty. 

Maryland;  form  of  colonial  govt.,  3; 

•  withholds  ratification  to  Arts,  of 
Confed.,  9;  secedes,  197. 

Masonic.    See  Anti-Masonic. 

Massachusetts,  form  of  colonial  govt., 
3;  prohibited  enforcement  of  fugi- 
tive Slave  law,  185;  qualifications  for 
citizenship,  254. 

Mayors  of  cities,  should  have  power 
of  removal,  272;  should  have  greater 
power,  274. 

Measures.    See  Weights. 

Meeting  of  Congress,  36. 

Members  of  Congress.  See  Congress- 
men. 

Messages  of  the  Prest.,  74;  Jefferson's 
change  in  method,  160-161. 

Mexican  War,  179-180. 

Mexico,  purchases  from,  115,  116;  set- 
tling eastern  boundary  of,  164. 

Migration  of  slaves,  49-50. 

Milan-Berlin  decrees,  161. 

Military  districts,  Southern  States 
formed  into,  203-204.  See  also 
Army. 

Militia,  recognition  in  Const,  amend., 
19;  power  of  Congress  over,  45; 
mode  of  requisition  for,  46;  Prest. 
commander-in-chief  when  in  ser- 
vice, 73:  right  of  States  to,  1-10-141; 
provisions  in  State  consts.,  253. 

Milligan  case,  140. 

Mines,  in  charge  of  Interior  Dept., 94; 
claims  in,  115. 

Mining,  development  of,  217,  237. 

Ministers.    See  Ambassadors. 

Minority  representation,  233-235,  262- 
263,271. 

Mint,  Bureau  of,  89. 

Misdemeanors,  indictments  not  essen- 
tial, 118. 

Mi--i->ippi  secedes,  194. 

Missouri,  pro-slavery  migration  from, 
to  Kansas,  186-187;  hesitates  about 
secession,  194 ;  remains  in  the  Un- 


IISDEX. 


317 


Ion,  197;  proposal  to  free  slaves  In, 
197:  special  legislation  limited, 
258;  minority  representation  in,  262. 

Missouri  Compromise,  164, 165;  reop- 
ened, 182-183;  repealed,  187. 

Mis-tr  als,  118. 

Money,  power  of  Congress  to  regulate 
value  of,  42-43;  to  be  paid  only  on 
appropriations,  51.  See  also  Bi-met- 
alism;  Coinage;  Currency;  Legal 
tender;  Paper  money;  Silver;  Specie 
payments. 

Monopolies,  power  of  Congress  over, 
41-42,  225.' 

Monroe,  J. ,  adm.  of,  163-166. 

Monroe  doctrine,  165-166. 

Morey  letter,  219. 

Mormons,  their  organization  at  Kirt- 
land  and  in  Mo.,  170. 

Municipal  government,  256-257,  266- 
274;  evils,  v-vi,  viii;  cannot  be  taxed 
by  Congress,  39-40;  power  of  States 
over,  54-55;  created  by  State  consts., 
253.  See  also  Debts  of  cities. 

Municipal  law,  use  of  States  for,  223. 


National  bank?,  power  of  Congress  to 
charter,  48;  act,  198;  the  system,  244- 
246.  See  also  Bank  of  U.  S.;  Fiscal 
Bank. 

National  debt.    See  Debt  of  U.  8. 

National  government,  its  supreme 
power,  16,  61-62  ;  cannot  be  limited 
by  State?,  120;  a  party  to  actions, 
133-135;  claims  against,  133-135;  pro- 
posed that  it  should  pay  for  rescued 
slaves,  194;  tendency  to  strengthen. 
223-226;  powers  surrendered  to  it 
less  than  those  reserved  to  States, 
250.  See  alao  Executive  Dept. 

National  Republican  party,  172;  adopts 
name  of  Whig,  173. 

Natural  resources  of  the  TJ.  S.,  vi-vii. 

Naturalization,  mode  of,  42. 

Naval  Solicitor,  90. 

Navigation,  laws,  150, 151, 235, 237-238; 
statistics,  88. 

Navy,  power  of  Continental  Congress 
over,  11 :  of  Congress  over,  45;  limi- 
tation or  power  of  States  to  main- 
tain, 56:  its  gallantry  in  War  of  1812, 
162;  a  large  navy  not  required  by 
U.  S.,  222. 

Navy  Dept,,  84,  88,  90,  93. 

Ne  exf.at,  U.  S.  courts  can  issue  writs 
of,  132. 

Nebraska,  its  formation  into  a  terri 
tory,  184,  186-1S9,  191;  admission  as 
a  State,  203.  211. 

Negroes.    See  Freedmen ;  Slaves. 

Nevada,  organization  into  a  territory, 
196;  admission  as  a  State,  199;  min- 
ing regions,  217. 


New  England,  form  of  colonial  govt., 
2;  opposition  to  War  of,  812, 162. 

New  Hampshire,  form  of  colonial 
govt.,  3;  adopts  State  const.  8. 

New  Jersey,  form  of  colonial  govt.,  8; 
municipal  govt.  in,  273. 

New  Mexico,  cession  to  U.  S.,  180;  its 
formation  into  a  territory,  184. 

New  Orleans,  battle  of,  162. 

New  York  State,  form  of  colonial 
govt.,  3:  adopts  State  const. ,8;  emi- 
gration tax,  56-57;  determines  elec- 
tion of  1880,  217;  introduces  voting 
by  ballot,  253-254;  election  of  judges, 
254-56;  special  legislation  limited, 
258-259  ;  railway  questions,  264. 

New  York  city,  ruled  by  bosses,  219; 
public  aid  to  religious  institutions, 
261 ;  tax  levy  in.  268;  defects  of  govt., 
272;  public  improvement  laws,  273. 

Newspapers.  See  Freedom  of  the 
press. 

Nobility.    See  Titles. 

Nolle  prosequi,  power  of  Prest.  to  en- 
ter, 83. 

Nominations  for  Prest.,  their  begin- 
ning, 69-70.  See  also  caucus. 

North  Carolina,  form  of  colonial  govt., 
3;  withholds  ratification  to  Const., 
14;  hesitates  about  secession,  194; 
secedes,  197. 

Northeastern  boundary  settled,  178. 

Northern  Pacific  Railway,  amount  of 
land  given  to,  246. 

Northwest,  development  of,  216-217. 

Northwest  boundary  settled,  181. 

Northwest  Territory,  passage  of  act 
for  its  govt.,  152. 

Nullification,  attempt  by  S.  C.,  25. 
170,  171-172;  advocated  by  Hartford 
Convention,  174. 

Number  of  Congressmen,  28-31;  of 
Senators,  33;  of  presl.  electors,  65, 
71;  of  electoral  votes  for  Prest.  in 
1876,  211. 

Oaths  of  office,  63-64;  of  Congress- 
men, 32;  of  Senators,  34. 

Office-holders  prohibited  from  receiv- 
ing foreign  gifts,  titles,  etc..  52 :  can- 
not be  presl.  electors,  65;  increase 
in  number  caused  by  Civil  War,  227. 
See  alto  Appointing;  Civil  service; 
State  officers. 

Official  household.    See  Cabinet. 

Orders  in  council,  British,  161. 

Oregon,  its  disputed  electoral  vote  in 
1876,  212,  214. 

Oregon  question  settled,  181. 

Organization  of  House  of  Rep.,  32;  of 
Senate,  34;  of  Congress,  35-36. 

Original  jurisdiction  of  Sup.  Ct.,  103- 
104,  108,  125-126. 

Overriding  vetoes  of  Johnson,  202,203 . 


318 


INDEX. 


Pacific  coast  and  Chinese  question, 
339-241. 

Pacific  railways,  only  ones  chartered 
by  uatl.  govt.,  225;  grants  of  land 
to,  246. 

Panama  Congress  proposed,  167. 

Panic  of  1837,  172,  176  ;  of  1873,  210. 

Paper  money,  amount  and  redemption 
of  Continental,  154 ;  its  excessive 
issue  causes  panic  of  1837,175-176; 
attempt  to  increase  amount  of  irre- 
deemable, 209-210 ;  causes  fictitious 
prosperity,  236;  uniform  character 
and  value  under  natl.  banking  sys- 
tem, 244-245;  basis.  246.  See  also 
Currency ;  Greenback  party ;  Legal 
tender. 

Pardoning  power  of  Prest,  73. 

Parker,  I.,  proposed  duty  on  importa- 
tion of  slaves,  151. 

Parliament,  denial  of  its  power  over 
colonies,  5. 

Parties,  their  lack  of  principle,  viii ; 
nominations  for  Prest.  by,  69-70; 
tneir  influence  in  interpreting 
Const.,  145-146;  need  of,  156;  be- 
come more  clearly  defined,  157-158 ; 
in  Jackson's  adm.,  172;  originated 
in  construing  Const.,  173-175 ; 
division  in  1860  on  slavery  question, 
192  ;  their  present  demoralization, 
220-221;  demoralized  by  spoils  sys- 
tem, 231 ;  how  to  improve  them,  231- 
235;  their  responsibility  in  special 
legislation,  259.  See  also  Abolition- 
ist ;  Anti-Federalists;  Anti-Masonic; 
Democratic ;  Democratic-Republi- 
can ;  Federalist ;  Free  Soil ;  Green- 
back ;  Know-Nothings  :  Liberal  Re- 
publican ;  National  Democratic ; 
National  Republican  ;  Republican  ; 
Whig. 

Patent  Office,  94. 

Patents,  power  of  Congress  over,  43- 
44  ;  for  land  grants,  115,  116. 

Pauper  element,  its  influence  in  cities, 
271. 

Paving  streets,  269. 

Peace  Congress  of  1861, 195, 

Penal  law,  use  of  States  for,  223. 

Pendleton,  G.  H.,  his  civil  service  re- 
form bill,  230. 

Pennsylvania,  form  of  colonial  govt., 
3  ;  special  legislation  limited  in,  258; 
minority  representation  in,  262  ;  mu- 
nicipal govt.  in,  273. 

Pension  Office,  94. 

People,  their  ability  to  remedy  evils, 
viii ;  rights  reserved  to,  15, 135-144  ; 
rights  secured  by  Const,  amends., 
19-21 ;  rights  protected  more  by 
States  than  by  natl.  govt.,  250. 

Personal  liberty,  right  of  colonists  to, 
3;  secured  by  Const,  amend.,  20; 


how  protected,  119,  121;  protected 
more  by  States  than  by  natl.  govt., 
SBuL 

Personal  rights  guarded  by  amend- 
ments, 117. 

Petitioning,  right  of,  19, 140,  251. 

Philadelphia  as  site  of  capital,  '152, 
155 

Pierce,  F.,  adm.  of,  186-190. 

Piracy,  trials  for,  under  Arts,  of 
Confed.,  10. 

Place  of  meeting  of  Congress,  32-33;  of 
trial,  120,  132. 

Platt,  T.  C.,  resignation  of,  77. 

Police  powers  of  States  cannot  be  con- 
tracted away,  55-56. 

Political  assessments,  78,  228,  230. 

Political  hist,  ol  U.  S.,  145-221. 

Political  institutions  of  U.  S.,  interest 
in,  iv  ;  strain  upon,  caused  by  Civil 
War,  iv-vi;  their  influence  upon  its 
prosperity,  vi-vii. 

Politician!-,  character  of,  232-233. 

Polk,  J.  K.,  adm.  of,  179-181. 

Population  of  U.  S.,  increase  up  to 
Monroe's  adm.,  163;  size  in  1848, 
182 ;  its  increase  in  cities.  270. 

Post-Qonst.  hist,  of  U.  S.,  145-221. 

Post-Oflice  Dept.,  84,  92-93 ;  refusal  to 
carry  immoral  publications,  138-139. 

Postal  powers  under  Arts,  of  Confed., 
11  ;  of  Congress,  43. 

Postmaster-General,  84 ;  his  duties, 
92-93. 

Potomac,  as  a  site  for  the  capital,  152, 
155. 

Preamble  to  the'  Const.,  135 ;  text, 
288. 

Presents.    See  Gifts. 

President  of  the  Senate,  34  ;  to  open 
electoral  certificates,  66,  213-214  ;  as 
acting  Prest.,  79-80. 

President  of  U.  S. ,  commander-in-chief 
of  army  and  navy,  45-;46;  his  mode 
of  requisition  for  militia,  46  ;  mode 
of  election,  65-72;  tenn,  65,  72-73, 
78-79;  duties,  73-78,  81,  a3-84;  re- 
election^, vacancy,  etc. ,79-81;  not 
subject  to  judicial  interference,  79 ; 
impeachment,  81-82:  power  of  creat- 
ing vacancies,  82;  his  implied  powers, 
83-84 ;  power  of  appointment,  83,  89, 
90,  92,  93,  94,  126,  151 ;  can  require 
opinion  of  Attorney-General,  90;  his 
order  not  a  process  of  law,  119  \  in- 
fluence of  Washington  in  limiting 
term,  147-148;  reeligibility,  152; 
change  in  mode  of  election,  160, 167, 
Ki!)-l70 :  amnesty  power  taken  from, 
203 ;  power  over  army  curtailed,  203. 

President's  official  household,  73. 

Presidents :  Washington,  147-157 ; 
Adams,  157-159  ;  Jefferson,  159-161 ; 
Madison,  161-163  ;  Monroe,  163-166; 


INDEX. 


319 


J.  Q.  Adam*,  166-168  ;  Jackson,  168- 
175;  Van  Buren,  175-176  ;  Harrison, 
177 ;  Tyler,  177-179 :  Polk,  179-181  ; 
Taylor,  182 ;  Fillmore,  182-186 ; 
Pierce,  186-190 :  Buchanan,  190-196 ; 
Lincoln,  196-200  ;  Johnson,  200-205  ; 
Grant,  205-216;  Hayes,  216-220; 
Garfleld,  217;  Arthur,  220. 

Press.    See  Freedom  of  the  press. 

Prisoners'  rights  to  witnesses  and 
counsel  secured  by  Const,  amend., 
21. 

Private  bills.  See  Local  bills ;  Special 
legislation. 

Private  property,  protected  by  Const, 
amend.,  20,  119-120;  power  of  State 
to  appropriate,  55  ;  exemption  from 
seizure  without  compensation,  251. 

Prize:^  rules  of,  under  Arts,  of  Confed., 
10  ;  power  of  Congress  to  regulate, 
45 ;  jurisdiction  of  Sup.  Ct.  over, 
127. 

Procedure,  forms  of,  132. 

Proclamation,  forged,  of  Lincoln,  139- 
140.  See  also  Emancipation. 

Prohibition,  power  of  Sup.  Ct.  to  issue 
writ  of,  126. 

Property  qualification  for  citizenship, 
254;  rights  of  women,  263.  See  also 
Private. 

Proprietary  government  in  the  colo- 
nies, 3. 

Protective  duties,  their  constitution- 
ality, 37-39,  120;  their  consideration 
in  1st  Congress,  149-150;  first  sec- 
tional dispute  on,  166;  advocated  by 
Whigs,  175;  division  of  parties  on,  in 
1848,181;  their  adoption,  196;  advo- 
cated in  Repub.  platform  of  1880, 
217-218:  Civil  War  a  pretext  for  their 
adoption,  235-236;  falsity  of  plea  for 
their  necessity,  238.  See  also  Com- 
merce; Free  trade:  Tariff. 

Provincial  government  in  colonies,  3. 

Provisional  govts.  of  Southern  States, 
201-202. 

Public  aid  to  religious  institutions, 
261-262. 

Public  documents.  94. 

Public  improvements,  frequent  change 
of  laws  in  N.  Y.,  273. 

Public  lands,  114-116,  152  ;  ownership 
after  formation  of  Union,  9-10;  power 
of  Congress  over,  46-47,  60-61 ;  pur- 
chasing, 90:  grants  to  corporations, 
115.  246-247.  See  also  Land  Office. 

Public  works,  Superintendents  of, 
253. 

Publications,  immoral,  in  the  mails, 
138-139. 

Punishment?,  cruel,  prohibited  by 
Const,  amend.,  21,  122,  142. 

Qualifications   for   Congressmen    and 


their  electors,  28;  for  Senators,  33- 

34;  Congress  to  judge,  36:  f or  presl. 

electors.  65  ;  for  Prest.,  67-68  ;    for 

citizenship  in  States,  254. 
Quartering  soldiers  in  private  houses, 

19-20,  141. 
Quorum  of  Congress,  36;  necessary  to 

elect  Prest.  or  Vice-Prest.,  67. 

Race  discriminations  prohibited  by 
Const,  amend.,  22. 

Railways,  power  of  Congress  over,  40- 
4i:  power  of  States  over,  53-54; 
grants  of  land  to.  115,  246;  inability 
of  States  to  deal  with,  224,  225-226  ; 
influence  upon  State  legislation,  257- 
260;  municipal  and  county  debts  in 
aid  of,  260-261  ;  checks  upon  their 
increasingpower,  263-264. 

Randolph,  E..  opposes  incorporation 
of  Bank  of  U.  S.,  155. 

Ratification  of  Articles  of  Confed.,  19; 
of  Const.,  114. 

Ratio  assessments,  attempts  to  limit, 
272-273. 

Rebels.  See  Confederates;  Southern 
States. 

Receipts  of  U.  S.  to  be  published  quar- 
terly, 88-89. 

Reconstruction  of  Southern  States, 
200-202;  205-207. 

Reelection  of  Prest.,  79. 

Register  of  American  ships,  237. 

Religion,  Const,  amend,  regarding,  19; 
Congress  cannot  establish,  117;  free- 
dom of,  135-136. 

Religious  institutions,  public  aid  to, 
261-262. 

Religious  test  for  offices  prohibited,  63. 

Remonetization  of  silver,  217,  242-249. 

Removal  of  Prest.  and  Vice-Prest., 
79-81. 

Removals  from  office,  powers  of  Prest. 
in,  151;  by  Jackson,  168-169.  See 
also  Tenure-of-office. 

Representation  in  U.  S.,  faults  of  sys- 
tem, viii,  233-235;  colonial  struggle 
for,  4-6;  by  majorities  secured  DV 
Const,  amend.,  22-23.  See  also  Mi- 
nority. 

Representatives.    See  Congressmen. 

Reprieve.    See  Pardoning. 

Reprisal,  power  of  Congress  to  grant 
letters  of,  45;  States  prohibited  from, 
52. 

Republican  form  of  govt.  guaranteed 
to  each  State,  19,  59,  60. 

Republican-Democratic  party,  162. 

Republican  party  (Old),  155-156, 157- 
158,  159,  160, 172.  See  also  National 
Republican. 

Republican  party  (New),  its  formation, 
188;  platform  in  1860,  193;  John- 
son's conflict  with,  202,  203  ;  its  sue- 


320 


INDEX. 


cess  in  1868,  205;  division  in  Grant's 
adm.,  207-208  ;  nominates  Hayes  as 
Prest.,  211  :  contest  of  1876,214-216  : 
elects  Garfleld  Prest.,  217  ;  platform 
in  1880,  217-218 ;  attacks  free  trade 
plank  of  Democrats,  218-219;  its 
worK,  220;  its  advocacy  of  civil 
service  reform,  229.  t>ee  also  Lib- 
eral Republican. 

Requisition,  of  criminals,  18,  58  ;  for 
militia,  46. 

Resignation  of  Prest.  and  Vice-Prest., 
71,  79-81. 

Resources.    See  Natural. 

Resumption  of  specie  payments,  209- 
211,  217. 

Retroactive  laws  in  civil  matters  per- 
missible, 51. 

Returning  boards,  208-209,  212,  213. 

Revenue  of  U.  S.,  its  excess  over  the 
needs  of  the  country,  v-vi ;  laws  to 
originate  in  Ho.  of  Rep.,  36-37 ; 
Treas.  Dept.  in  charge  of  its  collec- 
tion, 86-87  ;  that  from  sale  of  lands, 
115;  right  of  search  in  enforcing 
laws,  142  ;  consideration  in  first  Con- 
gress, 149  ;  nullification  in  So.  Caro- 
lina, 171-172.  See  also  Custom  ;  Free 
trade  ;  Import ;  Internal ;  Protective ; 
Tariff ;  Taxation. 

Revolution,  govt.  during,  6-7. 

Rhode  Island,  form  of  colonial  govt., 
8  ;  withholds  ratification  to  Const., 
14. 

Rights  reserved  to  the  people,  15,  135- 
144  ;  protected  in  State  consts.,  251. 

Rights  reserved  to  States,  15,  21,  116- 
117,  143-144,  250. 

Rocky  Mts.,  discovery  of  silver  in,  241. 

Roll  of  Congressmen,  made  up  by 
Clerk,  32. 

Rotation  in  office,  76-78. 

Rules  for  govt.  of  Congress,  36. 


Salaries  of  State  officers  cannot  be 
taxed  by  Congress,  40 ;  power  of 
States  over,  55.  See  oko  Compensa- 
tion. 

Sale  of  public  lands,  60-61. 

Scott,  W.,  sent  to  So.  Carolina  to  en- 
force revenue  collection,  171 ;  com- 
mands troops  in  Mexican  War,  179. 

Seal  of  State  Dept.,  85. 

Seal  of  U.  S.,  in  custody  of  State 
Dept.,  85. 

Seamen.  Treas.  Dept.  to  report  to 
Congress  amounts  received  from  and 
expended  for,  87-88  ;  their  impress- 
ment into  English  navy,  161. 

Search  warrants,  20, 118, 141-142. 


Secession  of  Southern  States,  193-195. 

Secretaries.  See  Interior;  Navy;  State; 
Treasury:  War. 

Sedition  laws,  48-19,  141,  158-159. 

Seizure.     See  Search. 

Senate  of  U.  S.,  23-35  :  electoral  votes 
to  be  counted  in  presence  of,  66  ; 
when  it  elects  Vice-Prest.,  67;  power 
of  confirmation,  73-74,  76-78,  83, 89  ; 
power  of  trying  impeachments,  82, 
101 ;  officers  confirmed  by,  S3.  89. 90, 
92,  98,  94  ;  concurrence  in  removals 
from  office,  204  ;  conflict  with  Ho. 
of  Rep.  in  electoral  contest  of  1876, 
213-214.  See  also  State  senate. 

Senators,  their  salaries,  82  ;  their 
qualifications,  84-35 :  disqualified 
for  other  offices  during  term,  36; 
oath  to  support  Const.,  63-64  :  can- 
not be  presl.  electors,  65. 

Serjeant-at-arms  of  House  of  Rep., 
32. 

Seymour,  H.,  nominated  as  Prest.. 
205. 

Sherman,  W.  T.,  199. 

Shipping.    See  Navigation. 

Signers  of  Articles  of  Confederation, 
285-287  ;  of  Const.,  301-302. 

Silver  question,  217,  241-244. 

Slander.    See  Libel. 

Slave  trade,  permitted  until  18(18.  49- 
50 ;  its  consideration  in  1st  Congress, 
150-151. 

Slavery,  abolished  by  Const,  amend., 
22,  122-123 ;  petitions  for  its  aboli- 
tion, 158;  beginning  of  struggle  over, 
164 ;  excited  feeling  regarding,  167- 
168,  178-179  ;  in  platforms  of  1848, 
181-182  ;  its  extension  to  new  terri- 
tories, 183-189  ;  division  of  parties 
as  to  extension,  188  ;  Dred  Scott  de- 
cision, 190-191  ;  proposed  settlement 
by  Crittenden  compromise,  194  ;  its 
abolition  in  State  consts.,  252.  See 
also  Abolitionist;  Fugitive. 

Slaves,  escaped,  to  be  delivered  up  by 
the  States  18-19;  invalidity  of 
claims  for  loss  of,  123-124  ;  emanci- 
pation, 197-198.  See  also  Freedmen, 
Fugitive. 

Soldiers  not  to  be  quartered  in  private 
houses,  19-20,  141. 

Solicitor-General,  89 ;  duties,  90. 

Solicitor,  Navai,  90 :  of  Internal  Reve- 
nue, 90  ;  of  the  Treas.,  90,  91. 

South  America,  proposed  conference 
with  republics  of,  167. 

South  Carolina,  form  of  colonial  srovt., 
3:  adopts  State  const.,  8  :  nullifica- 
tion, 25,  170,  171-172  :  opposition  to 
protective  duties,  168  :  secedes,  193- 
194  ;  attacks  Fort  Sumter.196  ;  elec- 
toral vote  in  1876,  212. 

Southern  States,  secession,  194  ;  pro- 


INDEX. 


321 


posed  peace,  199 ;  reconstruction, 
800-202,  205-207.  See  also  Confede- 
rate. 

Sovereignty.    See  State. 

Spain,  purchase  of  land  from,  115, 116. 

Speaker  of  House  of  Representatives, 
32  :  as  acting  Prest.,  79. 

Special  legislation,  257-260,  264.  See 
also  Local  bills. 

Specie  payments,  resumption  of,  v, 
V09-21 1 ,  217. 

Speech.    See  Freedom. 

Spirit;?,  duty  on,  150. 

Spoils  system,  76-78, 169,  227-228,  230- 
231.  See  also  Appointing  ;  Civil  ser- 
vice. 

Squatter  sovereignty,  182^183. 

Stamp  act,  cause  of  Continental  Con- 
gress, 5. 

Siandard  silver  dollars,  242. 

Standing  army,  how  controlled  by 
Congress,  46  ;  not  required  by  U.  S., 
222. 

Stanton,  E.  H..  attempt  of  Johnson  to 
remove,  204-205. 

State  banks,  evils  of  system,  244. 

State  conventions  for  amend,  consti- 
tutions, 253. 

State  courts,  cases  of  concurrent  juris- 
diction withTL.S.  courts,  109-110;  in- 
dictments in,  118  ;  appeals  to  Sup. 
Ct.  from,  127-132 ;  writs  of  injunc- 
tion from  U.  S.  courts  to,  132. 

State  Dept.,  80,  84-85. 

State  engineers,  253. 

State  executives,  252. 

State  judges,  252  ;  bound  by  U.  S. 
laws,  61-62  ;  their  election,  254-256  ; 
minority  representation  in  their 
election  in  Penna.,  262. 

State  legislatures,  252  ;  power  of  colo- 
nial, 3  5  ;  oaths  of  members,  63-64  ; 
minority  representation  in  their  elec- 
tion in  111.,  262  ;  biennial  sessions, 
264-266. 

State  officers,  power  of  States  over 
salaries,  55 ;  subject  to  mandatory 
proceedings  of  Sup.  Ct.,  110  ;  pro- 
visions lor  appointment  in  State 
consts.,  251-252. 

State  prison  inspectors,  253. 

State  rights  doctrine,  158,  173-175, 
215. 

State  senates.  252. 

State  sovereignty,  7, 15,  24-26. 

State  surveyors,  253. 

States,  powers  of,  under  Arts,  of  Con- 
fed.,  10;  their  reserved  rights,  15,21, 
118-117,  143-144,  250;  their  inde- 
structibility, 15-16:  equal  suffrage  in 
the  Senate,  17-18,  24,  33;  admission 
of,  17,  19;  to  give  credit  to  acts  of 
one  another,  18,  57-59:  cannot  be 
divided  without  their  own  consent, 

14* 


19 ;  suits  against,  by  citizens,  21, 
103, 110;  apportionment  of  Congress- 
men, 31 ;  cannot  levy  same  taxes  as 
natl.  govt.,  39;  cannot  be  taxed  by 
Congress,  39-40 :  powor  of  Congress 
to  organize  govts.  after  Civil  War, 
48;  privileges  prohibited,  52-57,  62- 
63;  their  right  of  eminent  domain, 
55:  cannot  limit  power  of  natl.  govt. 
over  public  lauds,  CO-61;  their  laws 
subordinate  to  those  of  U.  S.,  61-453; 
prevention  of  jealousy  in  choosing 
Prest.,  89;  power  of  Prest.  to  recog- 
nize their  govts.,  83;  parties  lo  ac- 
tions, 103.  105, 109,  126, 131-132;  con- 
stitutionality of  their  actions  judjred 
by  Sup.  Ct.,  104-106;  cannot  modify 
jurisdiction  of  U.  S.  courts,  108-109; 
suffrage  in,  113,  124;  their  control 
over  citizens,  114;  lands  given  to, 
for  educ.  purposes,  115;  can  pass 
seizure  laws,  118  ;  cannot  modify 
power  of  natl.  govt.,  120:  their  penal 
code  cannot  be  modified  by  U.  S., 
122:  Sup.  Ct.  to  determine  con:-titu- 
tionality  of  their  acts,  127-132;  their 
laws  and  procedure  binding  on  U. 
S.  courts,  132;  rights  to  militia, 
140-141;  their  jealousy,  147;  debts  on 
adoption  of  Const.,  154:  their  as- 
sumption by  natl.  govt.,  155;  need  of 
a  party  to  assert  their  rights,  156; 
th«-ir  increase  in  number,  163:  weak- 
ening of  their  power,  223-225,  228. 
See  atfo  Constitutions. 

Statistics,  Bureau  of,  88. 

Stephens,  A.  H.,  elected  Vice-Prest. 
or  Confederate  govt.,  185. 

Story,  J.,  quoted,  12,  136,  137. 

Streets,  laying  out  and  paving,  269. 

Strict  construction  of  Const.,  174,  215- 
216.  See  a/so  Limited. 

Suffrage,  124;  right  of  States  to  limit, 
113;  its  extension  to  freedmen,  200- 
203,  205;  secured  by  State  ronsts., 
251;  need  for  its  limitation  in  cities, 
270.  See  also  Ballot. 

Simmer,  C.,  assault  upon  him  by 
Brooks,  189. 

Sumter,  Fort,  surrender  of,  196. 

Supreme  Court,  102-106:  decisions,  16, 
38,  39-40,  41-42.  43,  48,  50,  51,  52-55, 
56-57,  60,  63,  109,  111-112,  140,  190, 
198, 224;  influence  of  parties  on,  145 
-146;  interpreter  of  the  Const..  26, 
62;  coerced  by  Congress,  35:  judges 
appointed  by  Prest. ,74:  no  authority 
over  Prest.,  81;  how  it  has  inter- 
preted Const.,  125;  its  jurisdiction, 
125-133:  in  control  of  Southern 
States.  192. 

Surveyors.    See  State. 

Susquehanna,  as  a  site  for  the  capital, 
152. 


322 


INDEX. 


Tallmadge,  J.,  proviso  on  admission  of 
Missouri,  164. 

Tariff,  its  evils  not  caused  by  Civil 
War,  v-vi;  under  Articles  of  Con- 
fed..  10;  it?  consideration  in  Con- 
gress, 149-150,  166,  168:  modified  to 
avoid  trouble  with  So.  Carolina,  171- 
172;  the  question  in  Folk's  adm., 
180;  its  future  treatment,  235-239. 
Bee  also  Free  trade;  Protective; 
Revenue. 

Taxation,  without  representation  in 
colonies,  4-5 ;  Continental  Congress 
without  power  of,  11;  power  of 
Congress  over,  37-40;  proportion- 
al to  population  if  direct,  51; 
State  can  waive  power  of,  53 ;  power 
of  States  over,  117;  cannot  be 
exercised  to  aid  private  enter- 
prises, 120;  at  present  on  a  war 
rooting,  235;  made  uniform  by  State 
constitutions,  253;  exemptions  from, 
261-262.  See  also  Assessments;  Cus- 
tom duties;  Import;  Internal;  Rev- 
enue. 

Taxes,  colonial  levy  and  appropria- 
tion of  in  Virginia,  2. 

Taxing  power  of  U.  S.,  development 
of,  226-227. 

Taylor,  Z.,  commands  troops  sent  into 
Texas,  179;  adm.  of,  182. 

Tea,  duty  on,  150,238. 

Telegraphs,  power  of  Congress  over, 
40-42;  inability  of  States  to  deal 
with,  224. 

Tennessee,  hesitates  about  secession, 
194;  secedes,  197. 

Tenure-of -office  act,  82,  204. 

Terms  of  Congressmen,  28;  of  Sena- 
tors, 33:  of  Judges,  44, 108;  of  Prest. 
and  Vice-Prest.,  65,  72-73,  78-79;  in- 
fluence of  Washington  in  limiting, 
147-148;  of  State  legislators,  252;  of 
State  governors,  252. 

Territories,  have  no  reserved  rights, 
16-17:  power  of  Congress  over,  60; 
slavery  question  in,  182-183, 193. 

Texas,  acquisition  of,  115:  transferred 
to  Spain,  164-165:  its  annexation, 
178,  180:  amount  paid  for  surrender 
of  its  claims  to  New  Mexico,  184;  se- 
cedes, 194. 

Texas  vs.  White  cited,  16. 

Text  of  Articles  of  Confederation, 
275-287:  of  Const.,  288-308. 

Third  terms,  79. 

Thomas,  G.  H.,  appointed  Sec.  of  War, 
205. 

Tilden,  S.  J.,  dispute  as  to  presidency, 
71-72,  211-216. 

Times  of  Congressional  elections,  31 ; 
of  electing  Senators,  33 ;  of  meeting 
of  Congress,  36;  of  electing  Prest. 
and  Vice-Prest.,  65,  70-71. 


Titles  of  nobility  cannot  be  granted 
by  the  U.  S.  or  by  States,  52;  office- 
holders cannot  receive  them  from 
foreign  govts.,  52. 

Tonnage  uuty,  56, 150. 

Topeka  Constitution,  189. 

Trade-dollar,  242. 

Trade-marks,  power  of  Congress  over, 
43-44. 

Transportation  questions,  inability  of 
States  to  deal  with,  224-225. 

Treason,  punishable  by  Congress,  47; 
impeachment  for,  75;  defined,  112. 
See  also  Attainder. 

Treasury  Dept.,  51,84;  its  duties,  85- 
89,  93:  deposit  system  adopted,  176. 
See  also  Solicitor. 

Treasury,  Sec.  of,  desirability  of  his 
having  a  seat  in  Congress,  248. 

Treaties,  the  supreme  law  of  the  land, 
61-62:  postal,  92;  jurisdiction  of 
Sup.  Ct.  in  cases  under,  102,  106, 
127-128. 

Treaty-power,  of  Continental  Con- 
gress, 10;  Cont.  Congress  could  not 
enforce,  13;  share  or  Senate  in,  34- 
35;  of  Congress,  40;  prohibited  to 
States,  52;  of  Prest.,  73. 

Trials.    <Sr«  Jury ;  Mis-trials. 

Tyler,  J.,  adm.  of,  177-179. 

Union  between  the  States  indissoluble, 

17,  24-26,  63. 
United  States,  adoption  of  name,  10. 

See  also  National  government. 
United    States    Bank.      See    Bank; 

Fiscal. 
Upper   California,  cession  to  U.  S., 

180. 
Utah,  its  formation  as  a  territory,  184; 

mining  regions  of,  217. 

Vacancies  in  office  of  Congressmen,  31 ; 
in  office  of  Senators,  33,  34:  in  office 
of  Prest.  and  Vice-Prest.,  71;  to  be 
filled  by  Prest.,  74;  power  of  Prest. 
to  create,  82. 

Van  Buren,  M.,  elected  Vice-Prest., 
168;  nominated  as  Prest.  by  Dem- 
ocrats, 172;  adm.  of,  175-176:  nomi- 
nated as  Prest.  by  Free  Soil  party, 
181-182. 

Vessels,  clearance  of,  51. 

Veto  power  of  Prest.,  75. 

Vetoes  of  Johnson,  overriding,  202, 
203. 

Vice-President,  as  President  of  the 
Senate,  34:  term,  65,  72-73;  mode  of 
election,  65-72;  as  acting  Prest.,  79- 
81;  change  in  mode  of  election, 
160. 

Vice-Presi dents:  Adams,  151;  Jeffer- 
son, 157;  Burr,  159;  Clinton,  161; 
Calhoun,  167, 168;  Van  Buren,  168; 


INDEX. 


323 


Tyler,  177;  Dallas,  179:  Fillmore, 
182:  King,  186:  Breckenridge,  190; 
Johnson,  205;  Colfax,  205;  Wilson, 
208;  Wheeler,  216:  Arthur.  220. 

Virginia,  colonial  levy  and  appropria- 
tion of  taxes,  2:  form  of  colonial 
govt.,  3;  adopts  State  const.,  8;  res- 
olutions of  1829,  25;  nullification  in, 
49;  calls  Peace  Congress  in  1861, 
195;  secedes,  196-197. 

Volunteer  army,  its  peaceable  dis- 
bandment,  v. 

Voting.    See  Ballot;  Suffrage. 

War  Dept,,  84,  88,  90. 93. 

War  of  1812,  162-163. 

War-powers,  139-140:  of  Continental 

Congress,  10;  of  natl.  govt., 43;  share 

of  Senate  in,  35,  45;  of  States,  56; 

over  private  property,  119.     . 
Warrants  on  U.    S.  Treasury  to   be 

signed  by  Sec.  of  Treas.,  86.    See 

also  Search. 
Washington,  G.,  on  Continental  Con- 


gress, 12;  opposed  to  third  term,  79: 
adm.  of,  147-157. 

Water  supply  in  cities,  269. 

Webster,  D.,163,  178. 

Weights  and  measures,  power  of  Con- 
gress to  fix  standard  of,  43. 

West  Virginia,  admission  as  a  State, 
198-199. 

Wheeler,  W.  A.,  elected  Vice-Prest., 
214,  216. 

Whig  party,  its  first  appearance,  173; 
cause  of  its  formation,  174-175; 
gains  strength,  176;  succeeds  in 
1640.  176;  and  in  1844,  177:  platform 
in  1848,  181;  in  1852,  185-186. 

Wilmot  proviso,  180. 

Wilson,  H.j  elected  Vice-Prest.,  208. 

Witnesses  in  criminal  trials,  21,  120. 

Woman's  suffrage,  60,  114,  263. 

Written  constitutions  vs.  unwritten, 
1-2. 

Writs.  See  Habeas  corpus;  Injunction; 
Mandamus ;  Ne  exea(;  Prohibition. 

Wyoming,  mining  regions  of,  217. 


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